Norwich City Council (202312116)

REPORT

COMPLAINT 202312116

Norwich City Council

14 June 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 handling of the resident’s:
1. Reports of damaged floor tiles.
2. Associated complaint.

Background

The resident is a secure tenant and the property is a 2 bedroom flat on the first floor of a block. The landlord is a local authority which owns and manages the resident’s flat.
On 17 April 2023, the resident reported that her floor tiles were damaged. The landlord’s contractor inspected on 27 April 2023 and told the resident that the tiles may contain asbestos. It said that an asbestos test was needed and that someone would contact her by the end of that week.
Between 11 May 2023 and 30 May 2023, the resident chased the landlord 3 times for an update on her floor tile repairs.
On 13 June 2023, the resident made a complaint saying that the floor was a trip hazard and that the landlord had not returned her calls or told her when the repair would be done. She said she wanted the floor tiles to be repaired and the landlord to compensate her for her inconvenience and the stress caused.
The landlord acknowledged her complaint on 14 June 2023 and gave its stage 1 response on 22 June 2023. It said:
1. Its contractor had inspected the floor but an asbestos test was needed before it could be repaired.
2. The contractor should have realised that a test was needed. The contractor wanted to apologise for not doing so and it would prioritise doing the test.
3. The repair was still within the landlord’s 60 working day timescale and it could not offer compensation.
4. It could not compensate her for “distress and anxiety” as it was not able to put a monetary value on this. Nor could it measure the value of stress and anxiety.
An asbestos survey was done around 21 June 2023. The specialist contractor’s report, dated 3 July 2023, confirmed that chrysotile asbestos had been found in the floor tile samples taken. The report said that the risk of harm was low provided the tiles remained undisturbed.
On 4 July 2023 the resident emailed the landlord saying she remained dissatisfied because:
1. She had reported the floor tiles on 17 April 2023 and they had still not been repaired. The landlord had said the repair would be prioritised but no one had contacted her.
2. The tiles may contain asbestos and she was concerned about the risks to her health. She told the landlord she has asthma.
3. Its response had not addressed why no one had returned her phone calls.
4. It had refused her request for compensation. The damaged tiles and possibility of asbestos had caused her to be worried and it had been stressful to have to keep chasing the landlord. The landlord should compensate her.
The resident contacted the Ombudsman on 19 July 2023 and, on our advice, emailed the landlord to ask for her complaint to be escalated. The landlord acknowledged her email the following day and said it would respond by 1 August 2023.
The landlord gave its stage 2 complaint response on 16 August 2023 which said:
1. An asbestos test had been done and found no “major risks that would require urgent attention”. Testing for asbestos was a regular process for work such as floor tile removal.
2. Its contractor had arranged to inspect on 10 August 2023 after which it would arrange the repair.
3. It had found no issues that suggested the repair was a “major health risk” and would not compensate her.
The resident asked the Ombudsman to investigate saying she remained dissatisfied with the time taken to repair the floor, the landlord’s communication with her, and its handling of her complaint.

Events after the end of the landlord’s complaint process

On 18 September 2023, the resident reported that the condition of the floor tiles had got worse and that her mother had fallen several times. The landlord’s contractor attended the same day to make the floor “safe”. The resident told us that tape had been used to stick down lifting and broken tiles.
The resident called the landlord again on 25 September 2023 and it raised an order for the floor tiles which contained asbestos to be removed throughout her flat.
On 13 November 2023 the resident called the landlord saying the contractor had been due to attend that day but had not done so. She chased the landlord for an update the following day.
The landlord’s specialist contractor removed all the floor tiles containing asbestos in March 2024. The work finished on 18 March 2024.

Assessment and findings

Handling of the reports of damaged floor tiles

The landlord’s asset management plan sets out how the landlord will protect its staff, residents, contractors and others from exposure to asbestos. It says that asbestos “can be presumed” to be present in properties built before 2000. The landlord would have known that the resident’s flat had been built before 2000 and should have approached the repair presuming that the floor tiles could contain asbestos.
When the resident reported the tiles were damaged on 17 April 2023, the landlord should have checked its records to see if it had previously done an asbestos test. If no test had been done, the landlord should have arranged one before planning any repair work. It’s failure to do so meant that it gave no consideration to the likely presence of asbestos at the start.
After the contractor had inspected on 27 April 2023, the resident chased the landlord 3 times for an update and expressed concerns about the possible presence of asbestos. It would have been reasonable for the landlord to have reassured the resident about the likely risk, as its asset management plan says it will do, and to have made sure that an asbestos test was arranged. However, we have seen no evidence that the landlord responded to any of the resident’s contacts or took any steps to arrange a test.
The evidence shows that the asbestos test was not arranged until after the resident had made a formal complaint. The asbestos survey was done on 21 June 2023 which was 2 months after the resident had first reported that the tiles were damaged.
Further, the resident had told the landlord in her complaint that the floor was a safety hazard and trip hazard. The landlord has a responsibility under the Housing Health and Safety Rating System (HHSRS), introduced by the Housing Act 2004, to assess hazards and risks within its homes.
Risks from exposure to asbestos and risks of falls are within the scope of the HHSRS and the landlord is required to consider if these amount to hazards that it would be obliged to remedy. It would have been appropriate for the landlord to have assessed the risks and considered whether any urgent action was needed to minimise them. We have seen no evidence that the landlord did so.
The delay in carrying out the asbestos test and failure to assess the trip hazard were not reasonable. The failings suggest the landlord did not have due regard for its safety or repairing obligations.
It would have been reasonable for the landlord to have decided what action it should take promptly after receiving the asbestos report. It is not clear from the evidence seen exactly when the landlord received the report but it was dated 3 July 2023 which suggests that the landlord would have received it around that time. The landlord’s repair records suggest that it did not raise an order for another inspection until 4 August 2023.
By that time, 76 working days had passed since the resident had first reported that the floor tiles were damaged. The landlord’s repair policy and its complaint responses said that the repair should have been completed within 60 working days. It would have been reasonable for the landlord to have ensured it completed the work needed as quickly as possible, given the repair was already late. It should also have been communicating with the resident to explain its intentions and keep her updated with progress. We have seen no evidence that the landlord did either.
The inspection order raised by the landlord on 4 August 2023 was cancelled on 8 August 2023 and it is not clear from the evidence why this happened. The evidence we have seen shows no further activity by the landlord in respect of the repair until the resident reported that the floor had got worse on 18 September 2023. This was a further failing.
In her report of 18 September 2023, the resident had told the landlord that her mother had tripped and fallen due to the uneven floor. It was appropriate that the landlord attended the same day to make the floor safe. This was in line with its repair policy timescales and its responsibilities under the HHSRS.
The landlord did not raise an order with its specialist contractor for the floor tiles to be removed until 25 September 2023 when the resident had called to chase the repair again. By that time, 112 working days had passed since the resident had first reported that the tiles were damaged. Even then, the repair was not completed within a reasonable time period and the resident had to continue chasing the landlord.
The resident told us that, around September 2023, the landlord had suggested that she may need to move out temporarily when the floor tiles were being removed. She said it had told her it would need to visit again to assess the scope of the work and the amount of furniture that would need to be moved.
The resident’s account is supported by a call she made to the Ombudsman on 13 November 2023 where she said the landlord had not attended a scheduled appointment that day. She had explained that the visit was to look at which of her belongings would need to be stored if she were decanted. The resident’s account is also supported by evidence we have seen of calls she made to the landlord on 13 and 14 November 2023.
However, there is no other reference in the landlord’s records to explain when it had first considered that the resident may need to be decanted, or when it decided that a decant would not be necessary. Nor is there evidence in the landlord’s records of it actively communicating with the resident around this time to explain its intentions or to progress a decant or repair work.
The uncertainty about the prospect of decanting caused distress and inconvenience to the resident. She did not know whether she would be moving or when or how long for or where she would be moved to.
It is not clear from the evidence we have seen what caused the further delay until the floor tiles were eventually removed in March 2024. It is clear that the repair was completed 9 months later than the landlord’s repair policy timescale states. This timescale was not appropriate and meant that the resident was living with the damaged floor tiles for 11 months after she had first reported the problem.
The evidence we have seen shows that the landlord failed to progress the asbestos test and removal of the tiles with the level of concern and urgency needed. It also failed to communicate adequately with the resident throughout to explain its intentions and plans. This meant it missed opportunities to reassure her about the risk of harm posed by the presence of the asbestos.
The landlord’s failings caused distress and inconvenience and amount to maladministration in its handling of the resident’s reports of damaged floor tiles.
We note that, in its asbestos management plan dated 2022, the landlord sought to improve its approach to managing asbestos and recognised that it would take time to achieve the improvements it wanted to make. The landlord should consider the failings identified in this case. It should consider developing a procedure for its staff to follow when dealing with a repair request which may be affected by the presence of asbestos.

Handling of the associated complaint

The landlord has a 2 stage complaints process. Its complaint policy says that it will acknowledge complaints at stage 1 within 5 working days and give a response within a further 10 working days. It says it will acknowledge complaints at stage 2 within 5 working days and give a response within a further 20 working days.
The landlord responded to the resident’s complaint within its policy timescale at stage 1. However, its response did not address all the points that the resident had raised in her complaint. It did not address why no one had returned her calls or her point that the floor was a trip hazard. Nor did it give an adequate explanation of why an asbestos test had not been done.
It would have been reasonable for the landlord to have given the resident a timescale for when the test and the repair would happen but it did not do so. This meant the response gave no clarity to the resident about how long it was likely to be before the repair was done.
The landlord’s response suggests that it had not adequately investigated what had gone wrong. The evidence seen suggests that the landlord had asked its contractor to draft a response and that the landlord had used that draft to give its stage 1 response. However, we have seen no evidence that the landlord questioned any of the points in the contractor’s draft response. This meant that both the landlord and contractor missed the opportunity to identify what had gone wrong and learn from the complaint.
Further, the landlord’s response did not show any accountability for its role in making sure the repair was done. It blamed its contractor for not realising that an asbestos test was needed and passed on the contractor’s apology. The landlord should be mindful that it is responsible for the actions of its contractors and should have effective oversight and management of its contractor’s activities. The landlord cannot abdicate from its repairing obligations.
The resident’s email of 4 July 2023 clearly said that she was not satisfied with the landlord’s stage 1 response. This should have caused the landlord to consider escalating her complaint. However, it did not do so until 19 July 2023 when the resident specifically asked for her complaint to be escalated.
This meant that the landlord’s stage 2 response of 16 August 2023 was given 43 working days after the resident had expressed dissatisfaction. The stage 2 response was not given within the landlord’s policy timescale or that of the Ombudsman’s Complaint Handling Code (the Code) at the time.
Further, the stage 2 response again failed to address all the points the resident had raised. It again did not explain why no one had returned her calls, why the asbestos test had been missed initially or why the repair had still not been done.
Its stage 2 response did not acknowledge that that the resident had asthma and its statement that no major risks had been identified was dismissive of her concerns about the risk to her health. The landlord should have confirmed the type of asbestos found, explained the level of risk and given reassurance on the issues she had raised concerns about.
Further, its comment that the contractor had arranged a survey for 10 August 2023 after which the repair would be arranged was meaningless given that date had already passed. The landlord should have acknowledged that the repair had exceeded its 60 working day timescale, apologised and given a timescale for when the repair would be done.
The landlord refused the resident’s requests for compensation at both stages of its complaint process. It did not send us its compensation policy for this investigation but its website says that it may consider paying compensation where it has not completed repairs in timescale.
It would have been reasonable for the landlord to have considered the resident’s request for compensation at stage 2 given the repair had exceeded its 60 working day timescale. The landlord’s response suggests it had not considered whether it should pay compensation for the delayed repair and its dismissal of her request was not reasonable. It would also have been reasonable for the landlord to have considered compensating the resident for her inconvenience in having to chase it for updates and to progress the repair.
The complaint process was an opportunity for the landlord to investigate what had gone wrong and to put things right. The landlord failed to properly investigate the resident’s complaint at both stages which meant its responses were inadequate. Its complaint process did not put things right for the resident as it took a further 9 months to complete the repair after she had complained and it did not reasonably consider her request for compensation at stage 2.
The landlord’s failings amount to maladministration in its handling of the resident’s complaint.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s handling of the resident’s:
1. Reports of damaged floor tiles.
2. Associated complaint.

Orders

Within 4 weeks of the date of this report the landlord must provide us with evidence that it has complied with the following orders:
1. A senior manager must write to the resident to apologise for the failings identified in this report. The letter must acknowledge what went wrong and the impact this had on the resident. The landlord must send us a copy of its apology.
2. Pay the resident total compensation of £900. The compensation must be paid directly to the resident and not offset against any arrears. It is comprised of:
  1. £400 for the delay in it completing the repair. This has been calculated at £50 per month from 13 July 2023 to 18 March 2024.
  2. £250 for the distress and inconvenience caused by its handling of the resident’s reports of damaged floor tiles.
  3. £250 for the distress and inconvenience caused but its handling of her complaint.

Recommendation

The Ombudsman recommends that the landlord considers the failings identified in its handling of the resident’s repair. It should consider developing a procedure for its staff to follow when a resident reports a repair which may be affected by the presence of asbestos.