Bromsgrove District Housing Trust Limited (202313916)

REPORT

COMPLAINT 202313916

Bromsgrove District Housing Trust Limited

25 September 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:
1. Asbestos in the loft space of the property.
2. The resident’s concerns about his rent account and rent arrears.
3. The associated complaint.

Background

The resident lives alone in his property, which has a loft space. The resident reports having mental health issues. The full property had a rewire in January 2020. In preparation, an asbestos survey was completed in November 2019. The survey showed that there was redundant flue piping in the loft which contained asbestos.
In May 2022 a gas contractor attended the property and raised concerns with the landlord about potential asbestos rubble in the loft space. The landlord attended to remove it on 18 October 2022.
On 20 October 2022 the resident called the landlord to explain that the way he paid his rent would be changing. The local authority had previously been paying his housing benefit directly to the landlord but from 24 October 2022 onwards he would be paying his rent directly to the landlord. The landlord informed the resident that he had rent arrears of £284.76 during the call.
On 11 November 2022 the resident received an ‘A1 Letter’ about his rent arrears, which now stood at £474.60. He called the landlord on 15 November 2022 to discuss the arrears, stating that he had found the letter “alarming”. On 22 November 2022 he spoke to a manager and said that he was unhappy with how he had been treated over the arrears, and that the A1 Letter had caused him distress. In the week that followed the landlord explained that the resident’s rent account was up to date, but would show standing arrears after each payment because the local authority paid the resident in arrears. The resident raised concerns about this again on 16 January 2023.
Later in January 2023 the landlord attended to relay insulation in the loft space which had been removed during earlier works. The resident said that it was around this time that he learned, either from the contractors who attended the property or through phone calls with the landlord, that the materials previously removed from the loft space had contained asbestos.
The resident complained on 9 February 2023. He complained that the process the landlord had followed to remove asbestos was not safe or in line with guidance and legislation. He was concerned that the landlord had failed to remove asbestos in advance of the rewire being completed in 2019/2020. He said that information contained in the asbestos consignment notice from 2022, which he had since had sight of, was incorrect. He pointed out other inaccuracies, such as that the contractor had reported removing the flue piping in one piece. The resident however had seen the bags of waste and said that they had been “smashed up”. Soon after, the resident requested documentation in relation to the works and the 2019 asbestos survey.
On 6 March 2023 the landlord concluded its internal investigation into the asbestos removal. It issued its stage 1 complaint response on 8 March 2023. It said that after an investigation, it had concluded that:
1. Its contractor did not follow HSE guidance when removing asbestos.
2. The flue was not removed intact.
3. The landlord was not provided with a risk assessment or method statement by its contractor, as was required, and the consignment notice had been completed incorrectly.
4. Following the removal of the flue in October 2022, some “low risk” debris had been left.
The landlord resolved to conduct a full environmental clean on 30 and 31 March 2023, suspend its contractor from undertaking similar works pending investigation, and conduct retraining on asbestos for relevant managers. It said it would also conduct ad-hoc audits on asbestos removals and monitor its staff.
On 30 May 2023 the resident called the landlord about his rent arrears, asking the landlord to complete an audit of his payments. The landlord did this and concluded he had arrears of £474.60. On 7 June 2023 it sent an A1 Letter to the resident stating that he had arrears of £575.25.
The resident called and emailed the landlord on 8 June 2023 disputing the arrears. He claimed he had made 2 payments that were not showing on his rent statement in May 2023. He was distressed that he felt the landlord had made a mistake and was concerned about the threat of eviction. The landlord replied the same day explaining the arrears and asking for evidence of the payments that were not showing. The landlord met with the resident on 14 June 2023 where a number of issues were discussed, including the asbestos and rent issues. It appears that this is when the resident’s complaint was escalated to stage 2 of the complaints process.
On 13 July 2023 the landlord issued its stage 2 response. It said that it upheld its stage 1 position regarding the asbestos and repeated its apology. It also explained that it had reviewed the advice it had given the resident about his rent account on various occasions and that it was satisfied the correct advice had been given. It invited the resident to provide more information about any payments he believed had not been reflected in his rent statements.
The resident contacted the Ombudsman on 17 July 2023 because he was unhappy with the outcome of his complaints. He wanted the landlord to provide a number of pieces of paperwork regarding the asbestos removal, an independent body to establish if the alleged arrears were correct, and the landlord to refund any overpayment in rent. The resident described how he had been distressed and worried for his health upon finding out that he had been living in a house with asbestos in the loft. He felt the landlord had put him at risk, undermining his faith in it and leaving him feeling unsafe in his home.

Assessment and findings

Scope of the investigation

The resident expressed concern for the health and safety of the operatives who completed the rewire in 2019, and asked this Service to investigate. However, this is not for the Ombudsman to consider, because of the parameters set out in the Housing Ombudsman Scheme (the Scheme). Paragraphs 42H, I, and J of the Scheme set out that the Ombudsman may not investigate complaints which:
1. Concern terms of employment or other personnel issues.
2. Concern matters raised by a complainant on behalf of another without their authority.
3. Fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body.

Asbestos in the loft space of the property

The Ombudsman’s Dispute Resolution Principles (DRPs) are to ‘be fair’, to ‘put things right’, and to ‘learn from outcomes’.

While the records indicate that the resident raised concerns about the handling of asbestos from 2019 onwards as part of his formal complaint, the landlord did not address this issue in its complaint responses (this is addressed further in the complaint handling assessment below) other than to note that “Some works took place in 2019 and 2020”
The asbestos survey taken in 2019 categorised the asbestos seen in the loft (the flue piping) in the “low risk” category. It recommended removal in a “suitable timescale” and said that the material should be inspected and assessed at suitable intervals of no more than 1 year apart. The landlord did not raise a job to remove the asbestos until May 2022. There is no evidence that the landlord carried out a further inspection between these dates. This was a failing.
It is agreed that in order to have been removed in bags in October 2022, the flue must have been smashed at some point after the 2019 survey was taken. It could not be established whether this was done during the removal in October 2022 or prior to it. Again this was a failing on the part of the landlord, which should ensure it keeps clear repair records, and especially so where potentially hazardous materials are involved. There is no evidence that at any point during this time period of the resident being informed that asbestos was present in the loft space. Therefore, no advice was given, nor was he advised not to access the loft. This was a significant failing that could have put the resident at risk, had he chosen to enter the loft space. The resident later told this Service that the landlord had explicitly told him that there was no asbestos in the property, in response to suspicions he raised with the landlord at an unknown time, but the Ombudsman has been unable to corroborate this.
After being reminded that asbestos was in the property, the landlord raised a job to remove it quickly, but was unable to attend and book the works in until after the summer, as the resident was away. The resident said that he had been told “rubble” needed removing from the loft space. He said that in October 2022, when the contractor attended in protective clothing and removed bags marked “hazardous waste”, he expressed concern but was told “not to worry”. The Ombudsman is not able to establish what was said to the resident by the contractor. However, there is no evidence that the resident was told that the job’s purpose was to remove asbestos from the property. This was inappropriate, as the resident should have been informed what works were being undertaken and why. This contributed to the resident’s trust in the landlord being undermined.
In the removal itself there were several failings, as explained in detail in the landlord’s complaint responses. These included:
1. That the contractor had not followed Health and Safety Executive (HSE) guidance for the removal of asbestos, including in its methodology.
2. That the contractor described the flue piping as having been removed “intact”, which evidence suggested was not the case.
3. That debris was left in the property after the removal.
4. That some documents and paperwork, including the consignment notice, had been completed incorrectly, contained inconsistencies, or had not been completed at all.
The landlord explained in its complaint responses that the risk to the resident posed by the contractor’s handling of the removal was minimal, because the type of asbestos was low risk and it had been put in sealed bags before being removed from the loft space. The evidence available supports this assessment, however there was debris left over, and the resident entered the loft space in order to identify that debris had been left. The landlord agreed to perform an environmental clean, but only because the resident complained, and not until roughly 5 months after the removal had taken place. This failing may have put the resident at risk, increased his health anxiety and caused the resident to go to considerable time and trouble to ensure things were resolved. The original survey from 2019 recommended a full environmental clean prior to the rewire taking place. Although the works had already been completed, the need for an environmental clean had already been noted and should have been raised alongside the removal in October 2022. It is noted that to address this failing, the landlord has added a new step to the removal process to ensure a post-removal inspection is completed and an environmental clean conducted where appropriate.
As part of the landlord’s complaint handling, it conducted an investigation into the removal of asbestos in 2022. The investigation was suitably thorough. The evidence demonstrates that the actions the landlord took as a result of the investigation were appropriate, far reaching and timely. For example, the landlord suspended the contractor from completing asbestos works except for the removal of floor tiles, which can be done without any regulatory requirements. It also introduced changes in its processes, ad-hoc inspections of ongoing asbestos removal works, and arranged training on asbestos for all relevant senior managers. This shows that the landlord appropriately used the complaint process to “learn from outcomes” and take action to address failings it had identified (although as noted, it did not address the resident’s concerns from 2019).
The resident had also complained about where the contractor removed the asbestos to, citing guidance and legislation on where asbestos should be stored. The evidence shows that it did take these concerns seriously and investigate. It found that the contractor was licensed to store asbestos on-site on its own premises in an approved container, but nevertheless expressed concerns about how this was done which likely formed part of the landlord’s subsequent conversations with the contractor. As noted above, it also added a new step to the removal process to ensure post-removal inspections, and environmental cleans where appropriate. As such, the Ombudsman has not made any further orders with regard to this learning.
In conclusion, the evidence available indicates failings in the landlord’s response to the 2019 survey, which it has not recognised or put right via its response to the formal complaint. And although the landlord conducted a thorough and open investigation into the resident’s concerns regarding the 2022 events, and conducted appropriate learning, it did not recognise the distress, inconvenience, time, and trouble caused to the resident as a result (addressed further below in the complaint handling section). This means that the landlord has not fully “put right” the impact of its failings on the resident. As such, a finding of maladministration is made.
The Ombudsman’s remedies guidance states that where there has been maladministration which has had a significant impact on the resident, compensation of up to £1,000 should be considered. The resident has not alleged that he has suffered any health issues as a result of the asbestos in his property, but described extensively to this Service the anxiety he feels now about his health and his risk of developing future health problems. The evidence also shows that the time and trouble in particular the resident went to over this issue was significant. To remedy the distress and anxiety the failings have cause, an award of £600 compensation is made below. An additional award of £200 is made in recognition of the time, trouble and inconvenience caused to the resident by the failings in the removal process.
Part of the outcome the resident desired from his complaint was all documents relating to the landlord’s consideration of asbestos prior to the rewire in 2019. He wanted to know exactly when the asbestos piping was damaged and to obtain copies of any risk assessments or formal notices produced. It is noted that the landlord has already sent a number of documents to the resident, though the resident feels some are missing. The landlord has also explained that there are some documents it does not, or has never possessed. This investigation showed no evidence that the landlord is withholding documents, as the resident fears. However, an order is made below to ensure the landlord resends all the information it can to the resident, to ensure due diligence. The landlord should make a final attempt to establish when the flue piping was smashed and by who, though it is understood this may not be possible.

The landlord’s handling of the resident’s concerns about his rent account and arrears

The resident became responsible for administering his own rent payments, which had previously been paid directly by the local authority to the landlord, in October or November 2022. At this point issues with arrears began to arise. The resident believes he has since overpaid an unknown amount for his rent, in excess of £1,000.
The Ombudsman has looked at the rent statements provided by the landlord. The rent statement shows that at the beginning of October 2022, the local authority paid the landlord a week later than it had been doing previously (the reason for this is unclear). This resulted in arrears of £94.92. It is unclear upon which date the resident became responsible for his own rent payments, as dates cited differ. The accounts show that the final payment made directly to the landlord was on 7 October 2022. The resident’s first payment to the landlord was paid on 7 November 2022, leading to arrears of £474.60 and resulting in the resident’s first arrears letter. The landlord was later told by the local authority that this amount was paid directly to the resident, but no evidence of this was provided.
In light of the above, the first A1 Letter sent on 11 November 2022 was accurate so far as the landlord knew at the time. The resident had reduced his arrears to £94.92 by 23 November 2022 by making additional payments. A week’s rent payment, due on 28 November 2022, has not been found. The landlord could not locate this payment manually. The resident made payments on 14 and 20 December 2022. The landlord applied its 2 weeks free rent between 12 December 2022 and 2 January 2023. The resident remained in 2 weeks arrears until 5 February 2022. The landlord explained that this was to be expected, because of the way his rent payments were timed.
The resident paid the correct amount during February and March and so arrears did not increase. Rent payments due on 3 April 2023 and 17 April 2023 have not been found. The resident made an additional payment of £90 on 6 May 2023. This left arrears of £284.90. As approximately £189 of these arrears were to be expected, as outlined above, the arrears were in reality arrears of 1 week. 3 rent payments which were due between 22 May 2023 and 5 June 2023 were not found. This resulted in £575 arrears. As a result another A1 Letter was sent on 7 June 2023. The records show that the resident made a payment of £575.25 on 9 June 2023, clearing all arrears. The resident made some overpayments after this date, totalling £205.79. The resident chose to resume direct payments from the local authority in July 2023. The landlord refunded the resident’s overpayments on 31 August 2023.
At various times there is some cause for confusion, for example inconsistencies in the payment dates made to the landlord by the local authority on behalf of the resident, and a lack of clarity over the exact date the resident first received payment from the local authority and became responsible for his own rent. However, there is no evidence of a failing in the administration of the rent account by the landlord. The Ombudsman has not had sight of the payments made by the local authority to the resident, or evidence of the resident’s payments to the landlord. Therefore, we cannot establish the exact cause of the arrears. As noted above, there do seem to have been payments that appear to have been missed by the resident, so he may wish to review his own accounts to check he received the correct amounts form the local authority, and identify whether any payments he did make are not reflected in the rent statements.
During the landlord’s correspondence with the resident regarding missed payments, the evidence shows that the landlord did request evidence of any payments made which were not shown in the statements. The resident did not want to do this due to the time and trouble he felt that he would have to go to. While this is understandable, this prevented the landlord from conducting a more in-depth investigation of the arrears than had already been done. The evidence also shows that the landlord queried potential issues with the local authority’s payments, which was appropriate. The local authority said that it had made all payments due either to the landlord or the resident as appropriate. The resident may wish to pursue this further if he believes the local authority have made a mistake. The evidence seen by this Service suggests that a detailed explanation of when payments were made and to whom by the local authority will likely be helpful in resolving some of the resident’s concerns. The Ombudsman has made a recommendation below that should the resident or local authority present any further evidence to the landlord, it should investigate any concerns promptly, and consider raising a stage 1 complaint.
As part of this investigation, the landlord’s correspondence with the resident throughout the period in question has been cross referenced against the landlord’s records. This investigation has concluded that the landlord’s responses were accurate and contained adequate detail, based on the information available to the landlord at the time. It took the appropriate step of requesting more information where necessary. The landlord also explained to the resident that his rent account would show standing arrears at most times, because the resident/local authority paid in arrears. The resident understood this, but was later frustrated when he received notices of arrears, which he felt were inappropriate given the above explanation provided by the landlord. The evidence shows however that the arrears notices were only generated when the arrears reached amounts in excess of these standing arrears. These were not inappropriately raised therefore, but did include an amount likely to have been present even when the resident was technically up to date on payments, increasing the resident’s alarm.
The Ombudsman has considered whether this was a potential failing, in conjunction with the wording of the A1 letters, which the resident felt were heavy handed and unduly threatening. The letters themselves are concise and it is understandable that they would cause alarm, particularly as they reference “next steps” as a potential threat of eviction. However, it is highly important that the landlord makes its residents aware of any arrears promptly, clearly, and warns of the potential consequences of non-payment. The amount specified in the arrears section was not incorrect, though an explanation that a portion of those arrears were “standing arrears” as described above, may have helped alleviate some concerns. Although this was a shortcoming which increased the level of distress caused to the resident, it would be disproportionate to describe this as a failing.
The A1 letters included signposting to advice organisations and included instructions to make payment. The landlord later took steps to reassure the resident of exactly what the letters meant and what the process would be if the arrears continued to accrue, as was appropriate. It also met with the resident, though these steps ultimately did not alleviate the resident’s concerns, partly as the relationship between both parties had already suffered in respect of unrelated issues.
Although there was no maladministration in the landlord’s handling of the resident’s concerns, there are additional actions it could have taken to reassure the resident, particularly in light of his reported vulnerabilities. The Tenant Involvement and Empowerment Standard states that in understanding and responding to the diverse needs of its tenants, it should “demonstrate how they respond to tenants’ needs in the way they provide services and communicate”. Although the landlord’s staff did demonstrate adherence to this standard in their correspondence with the resident, the A1 letters, which were likely automatically generated, could have potentially been improved upon to avoid causing unnecessary destress. The Ombudsman therefore has made a recommendation that the landlord consider if separate processes may be appropriate on some occasions when notifying some residents of arrears.

Complaint Handling

The landlord did not respond to the resident’s complaints about its handling of events from 2019. It may have chosen to do this in line with its Complaints Procedure, as it viewed them as historic, although if this was the case there is no indication that it explained this to the resident. The landlord’s Complaints Procedure states that it “will not accept complaints about issues that occurred over six months prior to the complaint being received.” However, the landlord has discretion on this point. In light of the fact that the resident only found out about the issue several years later, he could not have complained sooner, and so the landlord should have considered exercising its discretion in this regard.
The Complaints Procedure goes on to state that “in exceptional circumstances, such as landlord responsibilities to residents health and safety, [the landlord] may accept complaints about issues arising more than 6 months ago, at the discretion of [a senior staff member].” As the complaint in this instance did relate to the resident’s concerns about health and safety in his property, this further supports that the landlord should have considered responding to this element of the complaint.
In regard to the above, the Ombudsman has considered this failure alongside the landlord’s wider complaint handling. The complaint handling was otherwise thorough, and any delays seen were clearly explained to the resident in good time. The Ombudsman also notes the good practice shown in the landlord’s thorough investigation of the asbestos issues raised, which meant that ultimately the resident’s concerns were addressed, albeit not via the complaint process.
However, the landlord in this instance deprived both the resident and itself of the opportunity to respond to the historic concerns in this case. Further, the landlord’s Complaints Procedure also states that an apology is usually sufficient to put right most failings. However, “where this is insufficient because of the seriousness of the service failure and the level of inconvenience to the customer, a compensation payment may be offered.” The landlord did not offer any compensation in this case, despite acknowledging a number of serious failings. It therefore fell short of putting right any adverse effect to the resident when it had the opportunity to do so, and the resident has taken the additional time and trouble to pursue a remedy with this Service. The landlord should take particular care to ensure it follows the Ombudsman’s Dispute Resolution Principles to ensure things are adequately ‘put right’, as far as practicable, in its complaint handling.
In light of the above, a finding of service failure is made, along with orders for remedy.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of asbestos in the loft space of the property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s concerns about his rent account and arrears.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure in the landlord’s complaint handling.

Orders

Within 4 weeks of the date of this determination, the landlord must:
1. Pay the resident £925, made up of:
  1. £650 to reflect the distress and anxiety caused by the failings in the handling of asbestos in the loft space of the property.
  2. £200 to reflect the resident’s time and trouble in pursuing various issues with the landlord’s handling of asbestos in the loft space.
  3. £75 in respect of the impact of the complaint handling failures.
2. Send copies of all relevant documents, such as surveys, works orders, and risk assessments, to the resident. These should be annotated to mark which documents contain inaccuracies or inconsistencies.
3. Write to this Service to confirm whether the changes and improvements that have been made to the handling of asbestos will ensure that survey reports such as the 2019 report detailed in this case will be acted upon.

Recommendations

To continue to work with the resident to better understand his rent account and historic arrears, in any way it feels would be appropriate. Should the resident or local authority present any further evidence to the landlord of errors it may have made in handling the resident’s rent arrears, it should investigate promptly, and consider raising a stage 1 complaint.
To consider if any changes to its processes, regarding how it recovers arrears from vulnerable residents, would be appropriate.
Investigate any reports of asbestos received from other residents or operatives since 2019 and satisfy itself that these have been appropriately acted upon.