Leeds City Council (202000707)

REPORT

COMPLAINT 202000707

Leeds City Council

25 March 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

This complaint is about the landlord’s response to the resident’s concerns about asbestos at her property.

Background

The resident has a secure tenancy with the landlord for a three-bedroom house.

Policies, procedures, and agreements

Tenancy agreement:

The Council is responsible for repairing and maintaining ‘the structure and exterior of the dwelling house (including drains, gutters, external pipes and external decoration)’.

Asbestos factsheet for tenants:

This details the landlord’s general approach to dealing with asbestos in the home. It provides the following advice and guidance to tenants:
1. Asbestos products are found in most homes and if they are in a good state of repair and left undisturbed, they present no hazard to health.
2. Remember: asbestos is safe unless it is disturbed and fibres are released.
3. [the landlord] aims to maintain your property well and any asbestos containing materials are unlikely to need attention. Any materials that are in a good condition is unlikely to pose any significant risk to your health. However, you could be at risk when carrying out DIY or minor building repairs without following guidelines. Permission must be obtained from the Housing Manager for all DIY and minor building works been undertaken, this is a requirement under your tenancy agreement…
4. We will carry out an asbestos survey before any major work is done on a property to identify if any asbestos-containing materials are there which may be disturbed. We also carry out regular inspections in buildings with communal areas to make sure asbestos-containing materials are in a safe condition.
5. Asbestos containing products which are in good condition and not disturbed do not pose a risk to your health.
6. If there is an asbestos based material in my home, why not remove it straight away? Disturbing asbestos materials, which are in good condition, will be liable to produce asbestos fibres and increase health risks. Materials in good, sound condition do not cause health problems. If materials are in poor condition, we need to consider either removing them, or encapsulating them to seal in any asbestos.

Asbestos contractor procedure:

This sets out that once the landlord notifies its asbestos contractor, they must contact the tenant within 24 hours to arrange an asbestos survey. The contractor will take samples and prepare a report for the landlord. The report needs to be sent to the landlord within 21 working days of the survey.

Summary of events

The residents states that on or around 12 August 2019 she was doing some decorating and she noticed paint in the porch area was flaking. She thought it was caused by damp and decided to treat the area with damp paint. As she was painting the area more of the old paint was flaking off.
The landlord’s records show that on 20 August 2019, the resident contacted the landlord about the flaking paintwork and she was concerned that the landlord advised her not to disturb the paintwork as it may contain asbestos. An asbestos survey was booked in.
An asbestos contractor attended on 22 August 2019 and carried out an ‘asbestos management survey’. Samples were collected by the contractor for testing.
On 30 August 2019 the landlord carried out an inspection of the property. Its records show that a textured coating was falling off the entrance wall. It agreed to gel and scrape the flaking paint and then encapsulate the edges where it was falling off. The records noted that the resident was concerned that her health had been compromised, and she was advised that there was a low risk and that the exposure level would have been very low and it was not expected to exceed the relevant control limit.
The landlord’s records show that on 6 September 2019 an ‘Environmental Clean of Damaged Asbestos Material’ was carried out in the porch and a ‘Statement of Cleanliness’ was issued confirming that the area ‘was left debris free’.
The landlord carried out a visit to the property on 19 September 2019 and confirmed that remedial works had been carried out and it was satisfied that the area was safe. However, the resident wanted all the textured coating removed. The landlord agreed to look into this further.
On 26 September 2019 the landlord agreed that it would remove the textured coating from all the walls in the porch area and re-plaster. This would be carried out once all the other works (unrelated to the asbestos) had been completed first.
The resident contacted the landlord on 30 September 2019 as she was unhappy and wanted all the asbestos in the property to be removed (not just in the porch). She was of the view that irrespective of whether or not it had been disturbed, there was asbestos in her home which she felt was a danger to the health and wellbeing of her family. She therefore requested that the landlord remove all the asbestos is the property.
The landlord wrote to the resident on 10 October 2019 about the presence of asbestos in her home:
1. It explained that ‘asbestos containing material’ (‘ACM) was commonly found within the home in textured ceiling coatings (often referred to as ‘Artex’) in older properties.
2. The presence of an ACM within the home is acceptable and does not in itself constitute a danger. Asbestos only presents a danger if it becomes airborne and is able to be inhaled. As such, industry standards state that materials which are sound, undamaged, and not releasing fibres should not be disturbed or removed. As such, we do not remove ACM unless absolutely necessary. This is based on the principle that removing an ACM in good condition presents a greater risk than leaving it undisturbed and in situ.
3. The landlord confirmed that the remaining ACM in the resident’s property was in good condition and are contained within ‘bonded’ materials. As such, left in situ and undisturbed they presented no danger to the resident or her family.
On 14 October 2019 a senior member of the landlord’s asbestos team agreed to meet with the resident to discuss her concerns.
The landlord’s records show that on 29 October 2019 works were carried out to remove the textured coating in the porch and make good. The post completion report showed that there were ‘no issues to resolve’ and that the overall assessment was ‘acceptable’. A hazardous waste material removal certificate was also issued. The test certificate was completed by an ‘Asbestos Analyst’ and showed that all dust and debris was removed and an ‘air test’ was passed.
The landlord met with the resident on 5 November 2019 to ‘discuss responses and work undertaken with [the resident] and her friend and discuss in great detail the regulations and guidance that [the landlord] follow with regard to our asbestos policy’. It was agreed that a further survey would be carried out and the WC area would be tested as the plaster was crumbling and the resident was concerned about disturbed asbestos fibres.
On 13 November 2019 the asbestos contractor reattended and assessed the condition of the textured coating to the hall, stairs, and landing. The landlord was of the view that the textured coating was in good condition in general but there were a couple of areas that required further attention, which it said it would complete.
A follow-up asbestos survey report was issued on 22 November 2019:
1. The reason for the revisit was to provide opinion on the condition of the asbestos textured coating to the hall/stairs within the property and whether it was in a safe condition.
2. The quantity of asbestos in textured coating is relatively low, typically stated as around 1-5%. The asbestos is also encapsulated in a resilient semi-flexible matrix and painted that does not readily release fibres so here is little opportunity to release fibres unless the matrix is removed (e.g. degraded, dissolved or burnt) or subject to high levels of abrasion (e.g. use of power tools). It is important to note that only chrysotile asbestos was added by the manufactures and this has a lower risk than other types of regulated asbestos.
3. The walls to the hall/stairs/landing in general are well painted and moving forward disturbance should be avoided by the tenant and [landlord]. If cracks do re-appear to the textured coating, then an assessment should be made as to whether the area can be removed locally or if a full removal is required.
4. Repair recommendations included the peeling textured coating to be scraped flush and re painted in the hall to make good.
On 2 December 2019 the landlord confirmed that the works recommended in the asbestos report had been completed. It also confirmed that ‘although air tests are not needed on textured coating removals this size, one was carried out at your request and proved the area was below the limit set by the HSE so safe to reoccupy’.
On 4 December 2019 the resident again requested that the landlord remove all asbestos from the property. In response to her concerns a further meeting was arranged on 10 December 2019 to discuss this. The landlord’s records confirm the outcome of the meeting as:
1. After 1.5 hours discussing all the issues which had also been discussed in the site visit 05.11.2019, [landlord] asked [resident] if there were any more questions and [she] stated that there weren’t but if all asbestos was not going to be removed from the property, she may have to consult a solicitor. [Landlord] reiterated the complaints process and advised [resident] to contact her should she have any further questions and parted on good terms.
The landlord wrote to the resident on 10 December 2019 and confirmed that there was asbestos present within the property, but this did not pose any significant risk:
1. The asbestos is heavily bonded in a material and a very low percentage of the material is actually asbestos. Even with small hairline cracks the likelihood of the textured coating releasing fibres is very low. It is in good condition so does not pose a hazard to your health. If any damage does occur it can be removed locally. Removing all of it releases more fibres.
2. We do not remove asbestos that is in good condition as removing it causes unnecessary fibre release and is more of a hazard than leaving it in good condition in situ. (As per HSE guidance). Damaged areas of textured coating can be removed in small areas. This is better than large scale removal with regard to asbestos fibre release. The asbestos in your property is not releasing fibres and all you need to do is report damage if it occurs as you would any other repair and [we] will arrange for it to be removed.
The resident remained unhappy and raised a formal complaint on 6 January 2020. Her main complaint issues were that she was not told when accepting this property (in 2004) that it may have asbestos in the walls/ceilings, and she wanted the landlord to remove all the asbestos as she feels it’s a risk to her family.
The landlord issued its Stage 1 complaint response on 17 January 2020:
1. It summarised the complaint as
  1. She was not made aware that asbestos was contained within the textured coating when you took up the tenancy.
  2. The landlord should not let properties with asbestos products present.
  3. She had not received the report about some unrelated damp repairs.
  4. She does not believe the advice provided from various representatives from the landlord’s Asbestos Team and Management Team.
2. It noted that the resident wanted the landlord to completely remove all the asbestos in the property, or failing that, to re-house her elsewhere.
3. It acknowledged that it had not previously explained to tenants about where asbestos may be found within properties, and it had updated its policies in 2017 to ensure that this information was provided at sign up.
4. It explained how it handles asbestos within properties and it has policies and procedures in place to deal with this safely. It said that if a product is deemed ‘low risk’ it does not mean occupants are at risk. If there are signs of deterioration then it is safe to do a local removal. However, the regulatory advice is that removing asbestos disturbs asbestos fibres so reducing removal activity is the route to pursue to ensure the risk is kept to the lowest it can be. It maintained that there was no active risk to the resident simply because asbestos was present within the textured coating.
5. The remaining textured coating was in good condition and the resident was reminded to report anything that needed attention and the landlord will respond. It did not uphold this aspect of the complaint as it had complied with legislation and expert guidance on the asbestos removal.
6. It confirmed the unrelated repairs and provided a copy of the report the resident wanted.
7. It maintained that it had followed the Health & Safety Executive’s guidance and regulations with regard to removing asbestos in the property. It acknowledged her fears but it reiterated that it had explained its reasons for not removing the undisturbed asbestos.
8. It stated that the asbestos in the property was not in a condition that was putting her at risk and it was not a hazard to her health. If it were, it would remove it. It explained that asbestos in good condition was not a health hazard and she was not at any health risk from the product in her property. It therefore could not agree to her request to be re-housed.
On 3 February 2020 the resident requested that the complaint be escalated. The landlord responded on 5 February 2020 and said:
1. As per our meetings, previous meetings with Asbestos Officers, Asbestos Contractors at your property and previous correspondence explaining the content of the report, findings, actions and applications of the regulations, the remaining asbestos products in your property are not putting yours nor your daughter’s safety or quality of life in jeopardy. The textured coating is in good condition and is not the type of product that will release fibres just from normal day-to-day use. I understand that this is not the response that you seek but we do not remove asbestos unless it poses a risk to safety which this does not. As per HSE guidance, removing asbestos causes more disturbance and fibre release than leaving it in situ if it is in good condition.
The resident remained unhappy and requested that the complaint still be escalated. The landlord then issued its Stage 2 final response on 9 March 2020:
1. It set out the complaint issues as in its Stage 1 response.
2. It agreed that customers should be made aware of asbestos products within their home and this is reflected in its updated procedures from 2017.
3. It reiterated its Stage 1 explanation that there was a low risk product in the resident’s home and that there was more disturbance in removing the asbestos than letting it remain undisturbed in situ if it is in good condition.
4. It was satisfied that the textured coating in the property was in good condition and therefore did not need removal.
5. It was satisfied that it had complied with the current regulations around asbestos removal.
6. With regards to not believing the landlord’s advice and guidance, it maintained that it had followed the Health & Safety Executive’s guidance and regulations with regard to asbestos in the property. It had explained why it would not be removing the asbestos and stated that ‘we use the HSE guidance as an independent source in helping us determine policy’ and the advice its staff had given the resident was in consistent and in line with current regulations.
7. It repeated its finding that the asbestos in the property was not in a condition that was putting the resident at any risk and it was not detrimental to the resident’s health. It explained that, on its own, having asbestos in your property would not be reason to be rehoused.

Assessment and findings

The Ombudsman’s role is to consider whether the landlord’s handling of the resident’s concerns about the asbestos in her home was in accordance with its policies, procedures, and any agreements it has with the resident, and whether it acted reasonably, taking into account what is fair in all the circumstances of the case.
The key aspect of this complaint is the resident’s concern that there is asbestos in her home, which she believes is a serious health risk. The outcome the resident is seeking is for the landlord to remove all the asbestos within the property. She does not believe the landlord when it states that it is safe to continue to reside in the property as long as the asbestos is not disturbed.
The resident’s concerns and anxiety about the finding of asbestos materials within her home are duly noted. However, the Ombudsman’s role is not to investigate the level of asbestos or the risks involved, but rather, it is to provide an independent review of the landlord’s actions in its response to the resident’s concerns. It can be seen from the resident’s correspondence that she genuinely believes that the presence of asbestos in the property is alarming and poses a significant health risk, which, in her view, the landlord has failed to adequately address.
Looking at the landlord’s handling of this matter, it can be seen that it acted appropriately by swiftly arranging an asbestos survey to be carried out within two days of being notified. Its specialist asbestos contractor carried out a survey and took samples for testing in line with the landlord’s policy for asbestos management. A site visit was carried out within a week and it was quickly established that the level of risk was categorised as low. The contractor explained what it was going to do about the disturbed asbestos, and it reassured the resident that there was no serious health and safety risks.
Just over two weeks after the survey, the landlord had carried out the required cleaning of the disturbed area and had made it safe and debris-free.
In light of the resident’s concerns about any ongoing and potential future health risks with the remaining asbestos within the property, the landlord agreed to meet with the resident to ally her fears. After discussing her concerns, the landlord agreed to remove the ‘artex’ from the porch area. The available evidence suggests that the landlord was not obliged to do so, as it had already made the area safe. However, it is noted that the landlord acted reasonably and took a pragmatic and sensible customer-focused approach and tried to manage the resident’s concerns.
The expert evidence on file shows that two surveys were carried out by specialist asbestos contractors. The findings of these surveys showed that any undisturbed asbestos within the artex and in other areas of the property was deemed to be of a low risk. The opinion of the specialist was that the asbestos was sufficiently encapsulated and was deemed to be safe and in a good condition and unlikely to release any fibres. It was also concluded that removal of this undisturbed asbestos was not recommended.
The resident’s dissatisfaction with the landlord’s findings was appropriately acknowledged both when dealing with the substantive issue and also during the complaint investigation. The Ombudsman duly notes the resident’s feelings on the matter, but looking at the facts and the available evidence, there is nothing to suggest that the surveys, site inspections, and the resulting certificates and reports, were carried out by other than suitably qualified and competent persons. Whilst the resident has raised concerns about the potential ongoing risks of asbestos within the property, the Ombudsman has seen no evidence that would question the validity of the asbestos surveys and the conclusions of the specialist asbestos contractor.
The asbestos testing certificates and the reports provided by the landlord in response to the resident’s concerns clearly demonstrate that the landlord acted appropriately in this instance. The resident’s concerns were also referred several senior staff within the landlord’s asbestos management team, for review and the landlord has sought to explain its position as best it can to the resident. It has ensured that the technical information contained in the certificates and reports was explained to the resident both in writing and several times in person to help reassure and allay her concerns. The landlord has acted appropriately and has taken the resident’s concerns seriously and it has responded swiftly and decisively and its actions have exceeded what it was obligated to do.
The resident has said that the very fact that there is asbestos in the property should mean that the landlord is obligated to remove it all and ensure that her property is safe. The Ombudsman is satisfied that the landlord has acted appropriately by explaining its rationale and justification for not removing the undisturbed asbestos. On the face of it, it is understandable perhaps why the resident would be alarmed about the presence of asbestos. But be as that may, the resident’s concern does not mean that the landlord is required to remove the undisturbed asbestos. The landlord has adequately demonstrated that, where there was a potential risk from disturbed asbestos fibres (e.g. within the artex) it carried out the necessary remedial work to make this safe. This, however, does not mean that it is then obligated to remove all the remaining asbestos within the property. The available evidence suggests that the landlord’s decision about not removing the undisturbed asbestos is in accordance with the findings of the specialist asbestos contractor.
Looking at the evidence that is presently available, the landlord has addressed the resident’s concerns, and has appropriately evidenced that the remaining undisturbed asbestos within the property is safe and complies with the relevant health and safety requirements.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its response to the resident’s concerns about asbestos at her property.

Reasons

The landlord is not obligated or required to completely eradicate all the asbestos containing materials within the resident’s home. The evidence shows that the landlord acted appropriately in its response to the resident’s concerns. It carried out appropriate investigations and any materials that were deemed to be a risk were removed by appropriate contractors. It also provided a full and detailed explanation of its position and its rationale for the actions it took, and why it concluded not to remove any undisturbed asbestos containing materials. Overall, taking into account the circumstances of the case, the Ombudsman considers that the landlord’s handling of the matter was appropriate and reasonable and there is no evidence to show that the asbestos containing material within the resident’s property is unsafe.