North West Leicestershire District Council (202312181)

REPORT

COMPLAINT 202312181

North West Leicestershire District Council

21 March 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. Reports of pests in the property.
2. The resident’s concerns about the condition of the property following a mutual exchange.
3. The associated complaint.

Background

The resident has a tenancy with the landlord, which she secured through a mutual exchange on 27 March 2023. The landlord is a local authority. The property is a 2-bedroom house. The landlord has recorded vulnerabilities for the resident including breathing difficulties, panic attacks, and mental health difficulties.
On 22 March 2022, the landlord carried out an asbestos survey at the property. The Ombudsman will not relay the entirety of the survey report, but a summary of the findings was as follows:
1. It detected asbestos containing materials (ACMs) in the textured coating on the ceilings, but the risk assessment was low or very low.
2. It found ACMs in the cement of the soffits and the roof, but the risk assessment was low or very low.
3. It required a further inspection of the vinyl floor tiles and the textured coating on the ceiling of the first-floor bathroom.
4. The ACMs could be managed and removal was not required.
On 8 August 2023, the resident raised a complaint to the landlord in which she said:
1. A contractor had told her that the property was “riddled with asbestos”. The resident said the contractor refused to do any electrical work in the property because of this.
2. The landlord had not told her that the property required an electrical re-wire or that it contained asbestos, prior to completing the mutual exchange.
3. Her health had deteriorated while living in the property. The resident said the asbestos was a contributory factor to her health deteriorating.
4. She disagreed with the asbestos survey that the property contained “low risk” asbestos.
5. There were issues with the windows in the property and they had been poorly fitted.
6. Her boundary fence was not secure. The resident said the landlord did not offer any assistance with the boundary fencing or assistance with decoration inside the property.
7. There was mould growth in the property.
8. She would be registering to move away from the property. The resident said she also wanted an assessment as to whether the landlord would compensate her for works that she had completed inside the property to make it liveable.
On 29 August 2023, the landlord provided its stage 1 response in which it explained:
1. As long as the products containing asbestos remained undisturbed, they posed no harm to the resident.
2. It regularly checked the condition of its properties and always inspected on every change of tenancy. The landlord said a specialist contractor had listed the asbestos as “low and very low risk” and this posed no risk to the resident’s health in its undisturbed form.
3. It had spoken to its contractor about making “reckless and incorrect comments which may cause un-necessary panic or alarm”. The landlord said it was sorry that an incorrect and insensitive comment made the resident feel unsettled.
4. It would continue with any capital replacements and repairs as normal and decide for removals of asbestos as necessary. The landlord said it would have ordinarily explained this to the resident and advised her to wait to decorate the property. The landlord offered the resident £250 compensation for any expenses incurred in decorating the property.
5. The resident would need to discuss any move from the property with her Housing Officer.
6. It would review its mutual exchange process and what documents it provides, including information on planned works.
On the same date, the resident asked the landlord to escalate her complaint for the following reasons:
1. She was unhappy that the landlord provided her with the asbestos report after the tenancy had started. The resident said the landlord was aware she had breathing problems prior to moving into the property.
2. The landlord had refused to support her with decorating costs, despite there being faeces on the walls of the property at the start of the tenancy.
3. The asbestos, damp and mould had impacted her health. The resident explained she was having to stay at other properties and away from her home.
4. She was unhappy with the conduct of her Housing Officer.
5. The property had subsidence and cracks.
6. She was unhappy with the level of compensation the landlord had offered.
7. She required help to fill out the forms for the landlord’s bidding system.
8. She wanted to move properties.
On 18 September 2023, the landlord provided its stage 2 response in which it explained:
1. The asbestos report it had shared with the resident was conclusive in finding there was nothing to worry about and her home was safe to occupy.
2. The resident undertook pre-inspections with the outgoing tenant prior to the mutual exchange.
3. It had discussed with the resident about certain damage, repairs and issues and this was in the presence of a Housing Officer. The landlord said it had already explained what its repairs team would and would not do, what responsibility the previous tenant had to put things right before the exchange went ahead, and that once the resident agreed and signed to accept the property in the current condition, it would be her responsibility to put things right if she had agreed this with the previous tenant.
4. It had pre-arranged inspections for the reports of damp and mould, but the resident had refused access to the property. The landlord said it had arranged another appointment for 18 September 2023.
5. Additional support was available to the resident via its Tenancy Sustainment team and the resident’s Housing Officer.
6. It was processing an application to access the Choice Based Lettings scheme.
7. Mutual exchanges were not eligible for a decoration allowance. The landlord said the resident had said that she would take responsibility for the decoration of the property.
8. It could offer mediation and support to help improve communication and understanding between the resident and the housing and repairs team.
9. It would need the resident to provide access to the property so that it could carry out outstanding repairs.
In referring her complaint to the Ombudsman, the resident said:
1. She wanted compensation for the distress and inconvenience caused.
2. She wanted a written apology from her Housing Officer.
3. She wants the landlord to carry out a new asbestos survey.
4. She wants the landlord to complete outstanding works for the damp and mould.
5. She wants the landlord to offer a move to alternative accommodation.

Assessment and findings

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, in accordance with the Scheme, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction:
1. The landlord’s handling of reports of pests in the property.
Paragraph 42a of the Scheme states:
“42. The Ombudsman may not consider complaints which, in the Ombudsman’s opinion: a. are made before having exhausted a member’s complaints procedure unless there is evidence of a complaint-handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale”.
The resident did not raise issues about pests in the property in her initial complaint. As such, the landlord has not addressed this in its complaint responses.
In the interest of fairness, the scope of this investigation is limited to the issues raised during the resident’s formal complaint. This is because the landlord needs to be given a fair opportunity to investigate and respond to any reported dissatisfaction with its actions before the involvement of the Ombudsman. The resident can address any new issues that have not been subject to a formal complaint directly with the landlord. The landlord may progress this as a new formal complaint if required.

Scope of the investigation

The resident raised a complaint to the landlord regarding the conduct of a staff member. The resident said she wants an apology from the staff member. It is outside the Ombudsman’s role to consider or comment on how a landlord should deal with identified service failings by the individual members of staff involved, in terms of any disciplinary proceedings or employment matters. This is in accordance with paragraph 42(h) of the Scheme, which states that the Ombudsman will not consider complaints which concern “terms of employment or other personnel issues”.
However, the Ombudsman has investigated the landlord’s communication with the resident as a whole. Therefore, if the actions of an individual member of staff give rise to a failure in service, the Ombudsman’s determination and any associated orders and recommendations would be against the landlord rather than the individual.

The landlord’s handling of the resident’s concerns about the condition of the property following a mutual exchange

On 27 March 2023, the resident signed a “conditions of agreement to mutual exchange”. Section A and B of the agreement states:
“A. I [the resident] have visited the above property and accept the property in its present condition, including internal decorations of the property together with any alternations that have been made by previous tenants. I agree that [the landlord] is under no obligation to alter, rectify or repair any part of the property other than maintenance required through fair wear and tear.”

“B. I [the resident] am aware that [the landlord] will not be held responsible for any damage caused by the outgoing tenant during the course of them vacating the dwelling.”
The Deed of Assignment also states that the resident would take on all responsibilities and obligations of the property and the tenancy, including any outstanding repairs. Further, the Ombudsman has seen a note signed by the resident, albeit the note is not dated, which states that the resident was happy to accept the garden and internal decorations “as it was”.
However, the landlord was still responsible for certain repairs in the property in accordance with its repair handbook. Section 11 of the Landlord and Tenant Act 1985 also places an obligation on a landlord to maintain the structure and exterior of a property, as well as to installations such as boilers, pipes, and electrics.

The asbestos

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 is clear 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.
The Health and Safety Executive (HSE), says that “as long as asbestos is in good condition, and it is not disturbed or damaged there is negligible risk. However, if it is disturbed or damaged, it can become a danger to health, because fibres are released into the air and people may breathe them in”. The HSE advises not to remove asbestos unnecessarily “as this can be more dangerous than leaving it in place and managing it”.
The landlord’s asbestos procedural guide states that it should communicate details of the initial report to all new tenants by way of a standard letter. This should be issued with the tenant’s handbook at sign up. While the resident acquired the property through a mutual exchange, there is no evidence that the landlord notified the resident that the property contained ACMs prior to completion of the mutual exchange. It would have been reasonable for the landlord to notify the resident of the initial asbestos report. More so, in case the resident had intended to carry out any works or decoration works to the property.
Further, the resident should have had an opportunity to consider the asbestos survey report to make an informed decision before the tenancy began.
The landlord provided reassurances in its complaint responses that the asbestos did not pose a health risk to the resident. However, given the resident’s vulnerabilities and the concerns she had raised, it would have been reasonable for the landlord to consider a further inspection of the property. In addition, the landlord’s asbestos procedure suggests that regular inspections at 6 or 12-month intervals are required to ensure that where asbestos coatings are left in position, that there has not been any damage caused to the surface. Further, cement products in good condition should be inspected at intervals not exceeding 12 months.
The Ombudsman understands that the landlord tried to arrange an asbestos air test in the property on 19 December 2023, but it said the resident refused the work. The resident said she refused the work as she wanted another full asbestos survey. Given the resident’s concerns, it would be reasonable for the landlord to carry out a new asbestos survey, together with an asbestos air test, to assess the ACMs and ensure there is no damage.
The landlord should also review its current process regarding informing tenants of asbestos in the property prior to a mutual exchange agreement.

The electrical re-wire

The Ombudsman has seen evidence of an electrical installation condition report dated 3 March 2023. The report advised that the current wiring in the property was of a satisfactory standard. It is not clear from the documentary evidence available whether a full re-wire of the property is required.
The landlord failed to address the issue regarding the electrical re-wire in its complaint responses. As such, the landlord should clarify its position regarding the electrical wiring in the property. The landlord should contact the resident and advise if there are any works outstanding. If the resident’s position is that a re-wire is required in the property, then the landlord should carry out a full survey of the property to identify whether a re-wire is required and any necessary remedial works.

The boundary fence

The terms and conditions of the resident’s tenancy states:
“11.4: The maintenance of any hedgerow or tree(s) which define or mark the boundary will be your responsibility”.
The Ombudsman has seen evidence that the resident accepted the garden “as it was” at the time of the inspection. However, it is unclear from the evidence whether the condition of the garden changed between the date of the inspection and the date the resident moved into the property. The Deed of Assignment also states that the resident would take on all responsibilities and obligations of the property and the tenancy, including any outstanding repairs.
Regardless of this, the Ombudsman understands that the landlord has obtained a quotation for works to the resident’s garden, which includes works to the fence and side gate. The landlord said this was a “gesture of goodwill and outside of its repairs protocol”.
Given that the tenancy agreement states that the boundary fence is the resident’s responsibility, and the terms of the Deed of Assignment, the landlord’s response to carry out repairs to the resident’s garden and the fence was reasonable.

The damp and mould

The resident reported that there was mould in the property on 11 August 2023. The landlord carried out a survey of the property on 5 September 2023.
There was a delay of 17 working days until the landlord attended the property to inspect the reports of damp and mould. The landlord’s repair handbook states it aims to offer an inspection within 10 working days of the resident reporting the repair. The delay was in excess of the landlord’s repairs procedure and the Ombudsman has not seen evidence that the landlord apologised for the delay or explained the reason for the delay. This was not appropriate. In addition, the landlord did not offer the survey as part of its stage 1 response and therefore missed an opportunity to offer a resolution to the resident’s concerns at an earlier stage.
Landlords should be more transparent with residents involved in mutual exchanges and make the most of every opportunity to identify and address damp and mould, including visits and void periods.
While the survey did not identify any damp or mould, it did identify a number of cracks to the external elevations which could give rise to the risk of water ingress into the building. The landlord should carry out the works recommended in the survey report regarding the external elevations.

The windows

The recent survey dated 9 October 2023 (completed on 5 September 2023) outlined issues with the windows in the property. Specifically, the survey said that a number of window units had not been sealed correctly.
The landlord said it has tried to complete remedial works in the property, but the resident had refused access. The resident said she has not refused access to any contractors, apart from her Housing Officer.
The Ombudsman does not consider the matter in an adversarial way, as in the resident’s claims versus the landlord’s claims, instead it takes an inquisitorial approach that considers objectively what happened, what should have happened and whether there is evidence to demonstrate that the landlord’s actions were reasonable and appropriate (with reference to the relevant policies and procedures).
In this case, there is evidence that the landlord has reviewed the findings of the survey report and attempted to contact the resident to carry out remedial works. The landlord’s response was therefore appropriate. However, given that there appears to be outstanding works required to the property, the Ombudsman has made an order for the landlord to contact the resident and arrange to carry out any necessary remedial works.
The landlord said the resident has refused access to the property for it to carry out repair works. While it is a fundamental part of the Ombudsman’s role to consider whether a landlord has acted appropriately in response to a formal complaint, this will often necessitate an assessment of how the resident’s own actions may have contributed to the situation. Rather than demonstrating bias in favour of the landlord, this is an example of our independent and impartial role in practice, as we consider the conduct of both parties equally.
Section 5 of the resident’s tenancy agreement states that residents must allow access to the property for inspecting the condition of the property, carrying out repairs or undertaking improvements. It would therefore be reasonable for the resident to allow the landlord access to the property for it to complete repairs.
The resident has explained that the condition of the property and the presence of asbestos, has exacerbated her physical and mental health conditions. Under sections 2 and 4 of the Defective Premises Act 1972, a landlord is required to ensure that a property is not left on a condition which is likely to cause harm to a resident or damage to their goods.
However, when there is injury or a pre-existing medical condition has been exacerbated, the courts often have the benefit of a medicolegal report. This will often set out the cause of the injury and the prognosis. That evidence can be examined and cross-examined during a trial. In this case, while the Ombudsman has no reason to disbelieve the resident, it would be difficult for us to arrive at firm conclusions about the cause of her health conditions based on a review of the documentary evidence available in this case. These matters are likely better suited to consideration by a court as personal injury claim or to legal liability insurers. However, we have considered the distress and inconvenience caused by the condition of the property.
The resident has requested to be moved permanently into a different property due to the issues outlined above. The Ombudsman can understand the resident’s reasons for wanting to move. However, the Ombudsman would not order the landlord to move a resident immediately as part of our investigation. This is because we do not have access to information regarding the availability of suitable vacant properties owned by the landlord at any one time and we do not have details of any other prospective tenants waiting to move who may have higher priority than the resident for rehousing.
The Ombudsman recommends that the landlord should support the resident with her request to move from her current property and discuss her options with her if it has not done so already.
In summary, the landlord was at fault because:
1. It failed to communicate with the resident about the presence of asbestos in the property before the tenancy began.
2. It failed to consider whether an asbestos inspection was due, to assess whether there was any damage caused to the asbestos containing materials.
3. It failed to appropriately respond to the resident’s concerns regarding the electrical re-wire.
4. There were delays in the landlord inspecting the property following reports of damp and mould.

The landlord’s complaint handling

The landlord’s complaints policy states it will provide a stage 1 response within 10 working days and a stage 2 response within 10 working days, although if the process takes longer, it will inform the resident of progress every 10 working days.
The resident raised a complaint on 8 August 2023. The landlord provided its stage 1 response 15 working days later. While this was only 5 working days over the landlord’s complaints policy, it would have been reasonable for the landlord to contact the resident when it became aware that it was unable to provide a response within the timescales set out in its policy.
The landlord failed to respond appropriately to all elements of the resident’s complaint. For example, it failed to specifically address the resident’s concerns regarding the electrical re-wire and the issues with the windows. Further, it failed to address the issues with the damp and mould in its stage 1 response. This is a complaint handling failure in accordance with paragraph 5.6 of the Complaint Handling Code. Landlords must address all points raised in the complaint and provide clear reasons for any decisions, referencing the relevant policy, law and good practice where appropriate.
Overall, there were failings in the landlord’s complaint handling. While the landlord has apologised for the inconvenience caused, it failed to put matters right by addressing all the resident’s concerns at the earliest opportunity and taking steps to put things right. The Ombudsman has therefore ordered the landlord to pay compensation to the resident for the distress and inconvenience caused by the failures outlined above.

Determination

In accordance with paragraph 42a of the Scheme, the Ombudsman has no jurisdiction to investigate the complaint about the landlord’s handling of reports of pests in the property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the resident’s concerns about the condition of the property following a mutual exchange.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the resident’s complaint.

Orders and recommendations

Orders

The landlord must, within 28 days of the date of this determination:
1. Provide a full apology for the errors identified in this report. The head of complaints or repairs must make the apology in writing after reviewing this report.
2. Pay compensation to the resident of £500 in addition to the £250 offered in the landlord’s complaint responses (£750 in total), broken down as follows:
  1. £400 for the distress and inconvenience caused by the landlord’s handling of the resident’s concerns about the condition of the property.
  2. £100 for the distress and inconvenience caused to the resident as a result of the landlord’s complaint handling failures.

The landlord must pay the compensation directly to the resident. The landlord can reduce the total compensation by any of the £250 already paid to the resident if applicable.

Confirm to the Ombudsman whether there are any outstanding repairs to the resident’s garden/fence.
Arrange for a new asbestos survey, together with an asbestos air test, to assess the ACMs and ensure there is no damage. The survey report must be provided to the Ombudsman and the landlord within 10 working days of the date of the inspection.

The landlord must arrange an inspection of the property within 28 days of the date of this determination. Once the inspection is completed, the surveyor must produce a written report within 10 working days of the inspection, which must:
1. Confirm whether an electrical re-wire of the property is required.
2. Set out any outstanding repairs (if any) to the external elevations.
3. Comment on any damp and mould in the property and the cause.
4. Set out any outstanding repairs (if any) to the windows.
5. Include photographs of the areas specified (the windows and the external elevations)
6. Set out a schedule of works – together with indicative timescales to complete the repairs.
The survey report must be provided to the Ombudsman and the landlord within 10 working days of the date of the inspection.
The landlord must then use its best endeavours to ensure that any works are completed within 28 days of the date of the inspection report, or such other later time specified in the report. These works must also include the works to the resident’s garden referred to at paragraph 54(c). The landlord must retain records of its actions to confirm it has employed its best endeavours.

Recommendations

It is recommended that the landlord should support the resident with her request to move from her current property and discuss her options with her if it has not done so already.
The landlord should review its current process regarding informing tenants of asbestos in the property prior to a mutual exchange agreement.