Hammersmith and Fulham Council (202108074)

REPORT

COMPLAINT 202108074

Hammersmith and Fulham Council

29 December 2021

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 concerns:
1. How the landlord responded to the resident’s reports of being exposed to asbestos as a result of damaged flooring.
2. The effect on her and her family’s health due to the exposure.
3. The advice given by the landlord relating to asbestos at the start of the tenancy.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme (the Scheme). 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. After carefully considering all the evidence, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction.

The effect on the resident and her family’s health due to asbestos exposure.

In her complaint raised with the landlord and in her correspondence with this Service, the resident has stated that she believes that both her and her daughter have been left with serious illnesses as a result of the asbestos in the property.
The Ombudsman does not doubt the resident’s comments regarding her medical condition and that of her daughter, but this Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. The investigation of personal injury or damage to health and related compensation, is not usually completed within the complaints process; these matters are more appropriately addressed by way of the courts or by insurers. The courts can call on medical experts, cross examine the parties and make legally binding judgements, including liability.
Therefore, the resident’s complaint about the effect of her and her family’s health due to asbestos exposure is outside the jurisdiction of this Service. This is in line with paragraph 39(i) of the Scheme, which states that “The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion concern matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure”. Nonetheless, consideration has been given to the general distress and inconvenience which the situation may have caused the resident.

The advice given by the landlord relating to asbestos at the start of the tenancy

When bringing her case to this Service, the resident stated that the landlord had not provided information about asbestos when she took on the tenancy of the property in 1999 and that she would like this aspect of the complaint to be investigated by the Ombudsman.
The Ombudsman encourages residents to raise complaints with their landlords in a timely manner, so that the landlord has a reasonable opportunity to consider and resolve the issues whilst they are still ‘live’, and whilst the evidence is available to reach an informed conclusion on the events which occurred. As the substantive issues become historical it is increasingly difficult for either the landlord, or an independent body such as the Ombudsman, to conduct an effective review of the actions taken to address those issues.
Therefore, the resident’s complaint about the advice given by the landlord relating to asbestos at the start of the tenancy is outside the jurisdiction of this Service. This is in accordance with paragraph 39(e) of the Scheme, which states that we will not consider complaints that were not brought to the attention of the landlord as a formal complaint within a reasonable period, which would normally be within six months of the matters arising. In view of the time periods involved in this case, taking into account the availability and reliability of evidence, this assessment does not consider any specific events prior to January 2021. The historical issues provide contextual background to the current complaint, but the assessment is focussed on the landlord’s actions in responding to the more recent events and, specifically, to the formal complaint made in July 2021.

Background and summary of events

Background

The resident is a secure tenant of the landlord, which is a local authority. The property is a flat in a communal building.
The landlord operates a two-stage complaints policy. When a complaint is raised, it will send an acknowledgement within three working days and provide a stage one response within 15 working days. If a complainant requests an escalation of the complaint, the landlord will send an acknowledgement within three working days and provide a stage two response within 20 working days.

Summary of events

On 19 April 2021 the resident wrote to the landlord regarding asbestos in the property. She informed it that in June 2020 she had removed the carpeting to clean the flooring and as a result her and her family were exposed to asbestos dust. She also informed the landlord that she had disposed of broken pieces of asbestos with her bare hands.
The resident went on to describe health issues both she and her daughter had experienced since she had been exposed and expressed her dissatisfaction that she had not been previously made aware of the presence of asbestos in the property.
The landlord replied on 20 April 2021. It informed the resident that its repair team would be in contact to arrange an inspection. It also advised the resident to avoid areas where she suspected asbestos to be present and to seek medical advice.
An asbestos management survey was undertaken at the property on 28 April 2018. The resident wrote to the landlord on 6 May 2021 and requested to be rehoused while the asbestos was removed. The landlord provided a copy of the survey report to the resident on 7 May 2021.
The report found asbestos tiles in the lounge, the landing, stairway, and in two bedrooms. The asbestos was assessed as “very low material risk” and graded as “Risk Code E”. The survey report described risk code E as “low risk ACM (asbestos-containing materials). Where appropriate label with warning signs. Undertake routine inspections for damage and deterioration. Where damaged, remove or repair in accordance with regulations”.
The landlord wrote to the resident on 17 May 2021 to inform her of its position on the asbestos following receipt of the survey report and internal discussions. It explained that:
1. There are asbestos tiles in two bedrooms in the property underneath the carpet. The tiles are safe to be left in situ.
2. If the carpet were to be removed, the tiles would continue to be safe while they remained in a good condition and not intrusively disturbed.
3. The resident could still request that the tiles were removed. The landlord would then confirm how long the work would take and whether the resident and her family would need to be temporary rehousing while the work was completed.
The resident replied to the landlord on 20 May 2021. She informed it that she believed it was now too late for the tiles to be removed due to the impact they already had on her and her family’s heath, and that she was now seeking legal advice.
The landlord sent a summary from the asbestos survey to the resident on 21 May 2021 and stated that this described the ACM in the property as good condition and that there was no risk of exposure to asbestos fibres.
On 5 July 2021 the resident wrote to the landlord and requested to raise a formal complaint. She described the elements of her complaint as:
1. She was never informed by the landlord that the property contained asbestos.
2. Since she had disturbed the asbestos both her and her daughter and experienced medical issues.
3. Her family continued to be exposed to asbestos as several properties in the building were undergoing renovations.
4. The landlord should pay significant compensation due to the damage to her and her family’s health and also to personal items.
The landlord acknowledged the complaint on 7 July 2021 and informed the resident that it aimed to provide a response by 26 July 2021.
Following further correspondence between the landlord and resident about the complaint, the landlord wrote to the resident on 9 July 2021 and offered to arrange an air test in the property to test for the presence of asbestos fibres. The resident agreed and the test was booked for 13 July 2021.
The landlord wrote to the resident on 12 July 2021 to confirm the air test appointment. It also informed the resident that it followed the Health and Safety Executive (HSE) guidance as set out in the Control of Asbestos Regulations 2012. The landlord also advised the resident to contact her GP about her health concerns and requested further information on what work undertaken by her neighbours had exposed her to asbestos.
The resident replied on 13 July 2021 and provided the details of the properties where work had been undertaken. She also informed the landlord that she had developed an eye infection due to the “huge accumulation of air pollution”. The landlord visited the properties highlighted by the resident on 20 and 21 July 2021.
The landlord sent the resident a copy of the air monitoring certificate on 14 July 2021 and stated that it showed no raised fibre levels in the property. The resident replied and stated that the air test was “meaningless” as her family had been exposed to asbestos fibres more than a year ago. She also stated that her eye infection was as a result of damaged pieces of asbestos flying into her face.
The stage one complaint response was sent to the resident on 21 July 2021. The landlord explained that its air survey team had found no presence of asbestos fibres or dust in the property and advised the resident to discuss the medical problems she had described with her GP. It also informed the resident that it was monitoring the properties she had highlighted to ensure that any work undertaken did not breach regulations.
The landlord then informed the resident that it would not consider offering compensation as it had not found any evidence of service failure in how it had responded.
The resident wrote to the landlord on 21 July 2021 and requested to escalate the complaint. The landlord replied and enquired on what grounds the resident wished to escalate. The resident wrote again and described the grounds as:
1. The air test found no presence of asbestos as the disturbance of the tiles took place more than a year previously.
2. She had enquired if she would need to move her personal belonging if the asbestos was removed but had received no reply.
3. The landlord had not informed her of the presence of asbestos when she took on the tenancy of the property.
The landlord wrote to the resident on 27 July 2021 to confirmed that the complaint had been escalated and that it aimed to provide a response by 20 August 2021.
The resident and landlord discussed the outstanding issues of the complaint during a telephone call held on 27 July 2021 and the stage two complaint response was sent to the resident on 17 August 2021.
The landlord informed the resident that it was satisfied with its position as set out in the stage one response. It noted that its survey and air test did not uncover any risks to her health and safety. It also restated its advice for the resident to contact her GP in relation to the health issues she had described.
The landlord concluded the response by informed the resident she had exhausted its internal complaints process and advised her on what steps to take to bring her case to this Service should she remain dissatisfied.

Assessment and findings

How the landlord responded to the resident’s reports of being exposed to asbestos as a result of damaged flooring.

The resident’s concerns and anxiety about the finding of asbestos within her home are wholly understandable. However, the Ombudsman’s role is not to investigate the level of asbestos in the property and potential risk to the resident, but rather, it is to provide an independent review of the landlord’s actions in its response to the resident’s concerns.
Part 1 of the Housing Act 2004 relates to housing conditions. This states that landlords have a duty to review housing condition and identify any hazards that might exist. The Housing Health and Safety Rating System (HHSRS) assesses 29 different types of housing hazards and the effect that each may have on the health and safety of occupants.
Asbestos is one of the 29 hazards set out in the HHSRS. Under the HHSRS, the landlord needs to identify the location of any asbestos in the property, assess how vulnerable it is to damage and identify any current damage or potential fibre release. Where a hazard is identified, it is classified as Category 1 (being a serious and immediate risk to health or safety) or 2 (a less serious or urgent risk). The landlord must take enforcement action in relation to any Category 1 hazards.
There is no legal obligation for a landlord to maintain a register of properties containing asbestos or to inform residents if asbestos is present in their home
When the landlord was informed by the resident on 19 April 2021 of her concerns relating to asbestos, it was in line with its responsibilities under the HHSRS that it arranged a survey in order for it to identify any hazards and assess what risks they had to the occupants of the property.
Two types of asbestos surveys are undertaken by landlords. Asbestos management surveys are used to determine the presence of ACM in a building which could be disturbed during normal occupancy, while refurbishment/demolition surveys are used to locate ACM prior to invasive work taking place.
In this case, the landlord arranged to have an asbestos management survey undertaken. It then sent a copy of the survey to the resident and explained its findings. The landlord explained that while the survey determined that the was no risk to the resident of her family, that it would remove the tiles containing asbestos if it was requested by the resident. It also explained that if the resident did make the request that it would write back to inform her how long the work would take and whether she would need to be temporarily rehoused while the work was completed.
The resident then raised additional concerns about asbestos fibre and dust in the property as well as the potential of further exposure due to refurbishment work undertaken in other properties in the building.
In response to these concerns, the landlord arranged for an air test to be undertaken at the resident’s property and to visit the properties highlighted by the resident. Due to data protection regulations, it is not possible to provide details of the landlord’s interactions with the resident’s neighbours without their written consent. Correspondence has been provided which showed that the landlord visited the properties to enquire what work at been taken, ensure the proper permissions for the work had been sought and to confirm that the work had been completed to an acceptable level. The landlord therefore took further steps to investigate the resident’s concerns about asbestos fibre and dust in the property, and the related risk to her.
The landlord provided an air monitoring certificate which showed that no evidence of asbestos fibre had been detected. The resident then informed the landlord that she believed that she had been exposed to asbestos fibres a year previously; However, no evidence has been provided by either party which showed that the resident informed the landlord of her concerns of asbestos prior to 19 April 2021. Therefore, whilst the resident disputed the reliability of the air test, there was no delay on the part of the landlord.
Overall, the landlord has taken appropriate action to investigate the resident’s concerns about asbestos and to inform her of its findings. It has followed its obligations by first arranging for a survey to be undertaken and then arranging an air test to respond to the resident’s concerns. The landlord provided copies of both of the reports to the resident and explained why the tiles presented no risk to her and her family. Both of the reports were undertaken by independent surveyors. It was reasonable for the landlord to rely on the reports made by appropriately qualified professionals and to base its responses to the resident on the information in the reports.
The landlord also offered to remove the asbestos from the resident’s property if she requested and would provide further information on how long the work would take and whether the resident would need to be rehoused while the work was undertaken. This demonstrated that although the surveys had found the ACM to be low risk and the landlord was under no legal obligation to remove the ACM from the property, it recognised the concerns and anxiety that the resident had relating to the asbestos. By stating it would work with the resident to arrange to have the ACM safely removed from the property, it took further steps to resolve the resident’s concerns about asbestos. Therefore, there is no evidence of service failure in how the landlord responded to the resident’s concerns about being exposed to asbestos as a result of damaged flooring.
The resident when escalating her complaint enquired if she would need to move her personal belonging if the asbestos was removed. The landlord did not provide a direct response to this query, therefore a recommendation has been made regarding this point.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of how it responded to the resident’s reports of being exposed to asbestos as a result of damaged flooring.

Reasons

After the landlord was notified by the resident of her concerns about asbestos, the landlord adhered to its legal obligations and responsibilities by arranging a survey to assess what level of risk the ACM in the property presented. When the survey determined that the ACM in the property was of low risk, the landlord explained this to the resident.
The landlord therefore took further steps to investigate the resident’s concerns about asbestos fibre and dust in the property, and the related risk to her. The landlord was under no legal obligation to remove the ACM from the property. By stating it would work with the resident to arrange to have the ACM safely removed from the property, it took further steps to resolve the resident’s concerns about asbestos.

Recommendations

It is recommended that the landlord or its appointed asbestos contractor write to the resident confirming whether or not the works to remove ACM from her property can be carried out with her and her possessions in situ.