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Hyde Housing Association Limited (202342529)

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REPORT

COMPLAINT 202342529

Hyde Housing Association Limited

13 January 2025


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 concerns about asbestos in the loft.
    2. Complaint handling.

Background

  1. The resident has an assured tenancy at the property which is a 2 bedroom bungalow. She has lived at the property since 2018. She has 2 children, one of which is asthmatic. The resident also has asthma and ADHD.
  2. An asbestos assessment was carried out as part of a refurbishment survey at the property in 2017, prior to the resident moving in. This identified asbestos in the wall panels of the loft. It stated the asbestos was a medium risk and the action was noted as “remove”.
  3. The resident submitted a complaint in December 2023. She stated that a surveyor had attended in 2019 and had advised her that the asbestos in the loft needed to be removed. She stated that around the time of the COVID-19 pandemic (around 2020), the landlord had put tape around the loft hatch and had advised her not to access the loft. She stated that no action had been taken by the landlord since and she was unable to use the loft. She requested that the asbestos be removed.
  4. The landlord responded to the complaint at stage 1 on 24 January 2024. It stated that, as per the tenancy agreement, the loft was not to be used for any reason. It advised that as the loft hatch had been taped up then it was safe and that it would cause more damage if it removed the asbestos. It offered compensation for an unrelated matter and £50 compensation for its complaint handling failures.
  5. The resident escalated her complaint on 24 January 2024 and stated that there was nothing in the tenancy agreement which stated that she could not use the loft space. She stated that, as per the asbestos report, the asbestos should be removed. She stated that she did not want to live in a property with anything more than a low risk from asbestos.
  6. The landlord sent the stage 2 response on 16 February 2024 and stated as follows:
    1. There was no information in the tenancy agreement about the use of the loft. It had spoken to the lettings advisor who confirmed that when the sign up had been completed with the resident, they had explained that the loft was not part of a “tenant’s demise”.
    2. It would not be removing the asbestos within the loft. It had made the loft secure by taping it off and removal of the asbestos would be more hazardous. It advised that asbestos was not hazardous unless it was disturbed.
    3. The complaint was not upheld.
  7. The resident referred her case to the Ombudsman on 23 February 2024. She requested for the asbestos in the loft to be removed.

Assessment and findings

Scope of investigation

  1. The resident outlined that the landlord had failed to act in respect of the asbestos in the loft since at least 2019. The Ombudsman encourages residents to raise complaints with their landlords at the time the events happened. This is because with the passage of time, evidence may be unavailable and personnel involved may have left an organisation, which makes it difficult for a thorough investigation to be carried out and for informed decisions to be made. Taking this into account and the availability and reliability of evidence, this assessment has focused on the period from December 2023 (the resident’s complaint) and the landlord’s subsequent actions. Any reference to events that occurred prior to this are made in this report to provide context.
  2. The resident raised the issue of the impact of issue on her physical and mental health. Whilst this Service is an alternative to the courts, it is unable to establish legal liability or whether a landlord’s actions or lack of action have had a detrimental impact on a resident’s health. The Ombudsman is therefore unable to consider any personal injury aspects of the resident’s complaint. Such a matter is likely better suited to consideration by a court or via a personal injury claim. However, where there is a failing by the landlord, this Service will consider the landlord’s handling of the issues and any distress and inconvenience this may have caused. This Service would expect the landlord’s response to consider the resident’s reports on how the issue was impacting her, as this would reflect the detriment experienced.

Response to the resident’s concerns about asbestos in the loft

  1. The resident has expressed that she believes the asbestos in the loft poses a health risk to her and her children. The Ombudsman’s role is not to investigate the level of asbestos or the risks involved. The presence of asbestos itself does not constitute disrepair.
  2. There is no obligation on the landlord to remove all asbestos in a property, in line with the guidance issued by the Health and Safety Executive and the approach outlined by the Housing Health and Safety Rating System (HHSRS). Both of these confirm that asbestos which is in good condition can be left in situ. The Ombudsman’s role is to consider the landlord’s responses to the resident’s concerns, including whether its responses were reasonable and if it acted in accordance with its policies.
  3. Asbestos is identified as a hazard under HHSRS. This requires landlords to identify if asbestos is present in a property. Asbestos can sometimes be safely managed by landlords in situ provided it is covered, is in good condition and unlikely to be damaged or disturbed. However, landlords must keep accurate records in relation to all locations of asbestos and keep its condition under review. They are required by various statutory provisions to ensure that its tenants, staff and contractors are protected from exposure to asbestos fibres.
  4. Information and advice on asbestos is contained within the landlord’s residents’ guide. This states that if asbestos is present in a property, as long as the materials are left in a sealed condition and are not disturbed, there is no risk of harm. It states that the landlord’s policy is to always leave asbestos-containing materials that are in good condition in place and manage them, rather than remove them. It is not clear which of the landlord’s policies it has referenced this information from.
  5. Paragraph 8.15 sets out the landlord’s approach to asbestos in domestic properties. The document states where the landlord identifies asbestos in a domestic property and there is a recommendation for it to be removed, it will add such a property to its remedial action programme and complete the works within 2 years.
  6. The resident submitted her complaint to the landlord in December 2023 concerning its lack of action in respect of the asbestos. Within its stage 1 response (24 January 2024) the landlord stated that, as per the tenancy agreement, the loft was not to be used for any reason. This information was inaccurate and did not reflect the tenancy agreement, which this Service has seen and makes no mention of the loft space. The Ombudsman expects complaint responses to be based on accurate information. This did not happen in this case.
  7. Within the stage 1 response, the landlord advised that as the loft hatch had been taped up, then it was safe. It is not clear how it had determined the effectiveness of the tape as this Service has not seen any evidence that the landlord had inspected this since 2019. The landlord failed to provide supporting evidence to show how it had determined the effectiveness of the tape, in response to the resident’s concern. As such, it failed to demonstrate that it had taken this aspect of her concern seriously. Overall the landlord’s response at stage 1 was dismissive of the resident’s concerns, it was inaccurate and failed to demonstrate that it had fully considered her concerns.
  8. Within the resident’s escalation request (24 January 2024) she advised the landlord that there was nothing in the tenancy agreement which stated that she could not use the loft space. It is of concern that the resident had to point this out to the landlord and that the landlord’s prior stage 1 response had relied on terms that were not part of the tenancy agreement. The resident referred to the asbestos report from 2017 which had recorded the action for the asbestos in the loft as “remove”. She also questioned the effectiveness of the tape as a seal.
  9. Within its stage 2 response (6 February 2024) the landlord acknowledged that there was no information in the tenancy agreement about the use of the loft. However, despite this, it did not apologise for having provided inaccurate information about this in its stage 1 response or the steps it would take to prevent such inaccuracies in its complaint responses in the future.
  10. As part of its stage 2 response, the landlord also stated that its lettings advisor had told the resident that the loft was not part of a “tenant’s demise”. The use of legalistic phrasing was inappropriate and was not an effective way to provide a clear response to the resident. This Service has seen the internal correspondence between the landlord and the letting advisor. The landlord’s stage 2 response did not accurately reflect what the lettings advisor had conveyed to the landlord. In the correspondence seen, the lettings advisor explained that they advised residents that they are not to use the loft for storage, however, they advise that it can be used to store small items such as a Christmas tree. The landlord’s stage 2 response should have accurately reflected this, instead it was misleading.
  11. The landlord failed to address the resident’s concern about the effectiveness of the tape within its stage 2 response. It instead reiterated that it had made the loft secure by taping it. This overlooked the resident’s concern about the suitability of the tape and as such the landlord again failed to demonstrate that it had taken her concern about this seriously.
  12. The stage 2 response did not address the resident’s concern as to why the asbestos report had an action to remove the asbestos, but no action had been taken to do so. It was understandable for the resident to query why the action stated by a specialist contractor was not followed through by the landlord. The landlord advised the resident within its stage 2 response that the asbestos was not hazardous unless it was disturbed and that removal would create more of a hazard. This, however, did not reflect the landlord’s asbestos management plan. Based on the medium risk identified in the previous assessment and recommendation of removal, according to its asbestos management plan, it was reasonable for the resident to expect that the landlord should have actioned the removal within 2 years. Given that the report had been carried out in 2017, such works should have been actioned by 2019. The landlord failed to demonstrate compliance with its asbestos management plan or the commitment this placed on the landlord.
  13. Following the completion of the internal complaints procedure, on 23 February 2024, the landlord was advised by a contractor, who had attended to look at moving the kitchen extractor fan, that the loft hatch had not been sealed correctly. The landlord subsequently arranged an asbestos survey for 11 April 2024. This survey noted that access could not be gained to the loft, as insulation was covering the joists. As such, the contractor “presumed” the asbestos to be low risk and recommended refurbishment/removal.
  14. Although the resident’s concern alone did not mean that the landlord was required to remove the undisturbed asbestos, in the absence of evidence to the contrary, it was unreasonable that it did not act in accordance with its asbestos management plan. It was unreasonable that it did not ensure the findings of its assessment in 2017 were added to its remedial action programme and were completed within 2 years. If the landlord had decided to act contrary to its asbestos management plan, then it should have explained why to the resident.
  15. Given that any issue connected with the presence of asbestos is likely to be an emotive issue, the landlord’s failure to act in accordance with its asbestos management plan, its poor and inaccurate responses to the complaint and it’s lack of any acknowledgment of its failures, amount to maladministration.
  16. To acknowledge the impact and distress caused to the resident by the failures of the landlord to address the asbestos as per its asbestos management plan, compensation of £350 has been ordered. This is in line with the Ombudsman’s remedies guidance for maladministration, where a failure has had a detrimental impact on a resident.
  17. The Ombudsman issued a Special Report on the landlord in December 2024. This identified recurrent failures in its responses to repair issues and complaint handling. The special report identified that complaint responses were often difficult to understand and dismissive. This failure has been identified above and was present in the landlord’s handling of this case. Following the report, the Ombudsman had asked the landlord to review a number of aspects of how it handles repairs and complaints. As such, individual orders addressing these failures will not be made within this report.

Complaint handing

  1. The landlord’s complaints policy states that it will aim to acknowledge a complaint within 5 working days. It then aims to respond at stage 1 within 10 working days of the acknowledgement. At stage 2, it aims to respond within 20 working days.
  2. Although the exact date is not clear, the resident submitted a complaint in December 2023. This Service has not seen the acknowledgement, however, the resident advised that the landlord sent this on 27 December 2023. As of 11 January 2024, she had heard nothing further, despite chasing the landlord by telephone. The landlord responded to the complaint at stage 1 on 24 January 2024. This was 20 working days after the acknowledgement, which is double the response timeframe in its complaints policy. The landlord did not offer an explanation for the delay, however, it did offer £50 compensation for its complaint handling.
  3. The landlord’s compensation policy sets out that it will pay up to £50 to acknowledge a resident’s time and trouble. It also states that it may offer up to £25 to acknowledge service failures. The landlord’s offer of compensation was therefore in line with its compensation policy. It is also noted that the resident stated that she had received chocolates from the landlord as a goodwill gesture. This was also in line with the action it could take as per its compensation policy.
  4. It is noted that the landlord responded at stage 2 within 18 working days (24 January to 1 March 2024). This was in line with its complaints policy.
  5. The landlord’s acknowledgement of the delay at stage 1 and its offer of redress, which was in line with its compensation policy, amounts to reasonable redress, in that it put things right for the resident.

Determination (decision)

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s response to the resident’s concerns about asbestos in the loft.
  2. In accordance with paragraph 53.b of the Housing Ombudsman Scheme, there was reasonable redress in respect of the landlord’s complaint handling.

Orders

  1. The landlord is ordered to take the following action within 4 weeks of this report and provide evidence of compliance to this Service:
    1. Apologise in writing to the resident for the failures identified in this case.
    2. Pay £350 compensation to acknowledge the impact on the resident of the landlord’s failures in its response to the resident’s concerns about asbestos in the loft.
  2. The landlord is ordered to take the following action within 8 weeks of this report and provide evidence of compliance to this Service:
    1. Confirm to the resident and this Service the action it will take in respect of the loft asbestos and to assess the appropriateness of the tape used to seal the loft, in light of the concerns raised by its contractor. A timeline of any proposed action should be provided alongside this.
    2. Within 8 weeks the landlord should provide the Ombudsman a report summarising identified improvements to its services, which should also be cascaded to its relevant staff. Topics for inclusion include:
      1. To identify why it did not follow its asbestos management policy in this case. Points of failure should be identified and it should explain how it will prevent such failures from happening again.
      2. How it will ensure its staff provide accurate responses to queries in respect of tenancy agreements.