Rotherham Metropolitan Borough Council (201908898)

REPORT

COMPLAINT 201908898

Rotherham Metropolitan Borough Council

29 January 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 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 resident’s concerns that the landlord and its contractor failed to comply with Health and Safety Regulations when removing asbestos tiles from his hallway floor.
The resident has also complained that the landlord had, without his permission arranged for the Housing Benefit element of his Universal Credit to be paid direct to the landlord.
This complaint is also about the landlord’s handling of the resident’s:
1. Reports of disrepair to his hallway floor.
2. Reports of damp in his property.
3. Concerns about the electric sockets in his main bedroom.
4. Concerns about the conduct of the Landlord’s staff towards him

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman 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.
Paragraph 39(m) states The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion: fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body.
After carefully considering all the evidence, in accordance with paragraph 39(m), the residents’ complaint that the landlord and its contractor failed to comply with Health and Safety Regulations when removing asbestos tiles from his hallway floor outside of the Ombudsman’s jurisdiction.
This is because whilst the Ombudsman can determine whether the actions of the landlord were reasonable, or not, we cannot determine whether any failing identified would constitute a breach of Health and Safety regulations, nor do we have the expertise to do so. The Health and Safety Executive (HSE) is responsible for regulating health and safety law and for enforcing its regulations in relation to workplace health and safety and for protecting the health, safety and welfare of people at work, and to safeguard others, including the public, who may be affected by work activities.

That the landlord had, without his permission arranged for the Housing Benefit element of his Universal Credit to be paid direct to the landlord.

After carefully considering all the evidence, in accordance with paragraph 39(m) of the Housing Ombudsman Scheme, I am satisfied that the residents’ complaint that the landlord had, without his permission arranged for the Housing Benefit element of his Universal Credit to be paid direct to the landlord is also outside of the Ombudsman’s jurisdiction.
This is because Housing Benefit is administered by the local authority and they are responsible for decisions made with regards to requests from landlords for payments to be made directly to them. Any complaints about the decision made should first be directed to the relevant local authority. If the resident is dissatisfied once their complaint has exhausted the local authorities appeals process, the resident’s complaint may then be considered by the First Tier Tribunal.

Background and summary of events

Background

The resident has a periodic tenancy with the landlord, which is a local authority.
The tenancy commenced on 27 November 2018. The tenancy was initially an introductory tenancy, becoming a periodic tenancy on 27 November 2019. The tenancy is a furnished tenancy, part of a Furnished Homes Scheme. The furnished tenancy agreement includes vinyl flooring and carpet and the resident pays an additional charge of £9.34 per week in addition to his rent.
The property is a 2-bed ground floor flat.

Summary of Events

On 1 April 2019, the resident called the landlord to report his concerns that his hallway floor was uneven. The landlord raised a job to ‘‘Screed repair crack in floor/Floors: Uneven floor, Concrete Floor; in Hallway, Fair wear and tear’’ and operatives attended the property on 9 April 2019. Following the visit, the job was referred back to the landlord because the operatives ‘‘suspected that the tiles underneath the floor covering may contain asbestos’’. The resident later advised this service that the operatives came in and ripped up vinyl and exposed tiles. There is no evidence that there was any damage to the tiles. The landlord noted that on 11 April 2019, the resident said that he was attending hospital the following day and would call the landlord when he was home to arrange for the works to be done.
On 30 April 2019 the landlord raised a further job to ‘‘lift furnished floor by wet room and level off flooring underneath’’. The landlord reported that a visit was made on the 30 May 2019, but access was not gained. The landlord raised a further job on 7 June 2019. The landlord said that that job was cancelled, and another order raised on 18 June 2019. The landlord said that the reason the job was cancelled was because the resident had been concerned about the use of ‘wet room’ in the job description. However, the resident disputes this and has told this service that contractors attended his property several times in the summer to replace a wet room floor and they were not expecting or prepared to carry out works his hallway and so left.
A new job was raised on 18 June 2019 to ‘‘Take up hallway floor covering and remove tripping hazards to concrete floor, possibility of asbestos floor tiles around the lifted area which may need removing and screeding to maintain level of flooring underneath’’. The landlord said that this job was issued following its visit to the resident’s property. It is unclear when this visit took place.The landlord also said that the resident had said that he had fallen on the floor, and that its officer had reported that he could ‘‘see a slight rise on the hall floor’’ and as‘‘(the resident) was saying he has tripped and is disabled I have said we would lift vinyl, screed and put vinyl down’’. The landlord said that during the visit the resident was advised that the landlord would be carrying out a patched repair. This was disputed by the resident. The resident asserting that he had been told ‘‘the hallway floor from the front door to the radiator was to be levelled’’.
The landlord’s records indicate that an appointment was made for the works to be carried out on 2 July 2019. It is unclear why this appointment did not go ahead.
On 4 July 2019, the landlord raised a new job to lift the resident’s flooring. On 10 July 2019, the landlord’s records note that the resident called to say that he had received a text from the contractors and had ‘‘stopped in all afternoon but no one attended’’.
On 25 July 2019, the contractor emailed the landlord to say that they had made appointments to carry out the works on 18, 19, 22 and 24 July but there had been no one at the property to provide them with access for any of the four appointments. The contractor advised the landlord that it had rescheduled the appointment for 29 July 2019.
On 30 July 2019, the landlord and the contractor’s work supervisor, visited the resident’s property. The landlord said during the visit the vinyl floor was lifted to reveal a tiled floor with a concrete screed channelled into it running from outside the bathroom/toilet, part way towards the bedroom and stopping in a T junction by the hall radiator. Beneath the screed was a redundant pipe, and a vertical pipe underneath the hall radiator that protruded by about 5mm. The landlord also noted that a small number of unbroken whole tiles lifted with the Vinyl.
Following the visit on 30 July 2019, a new job was raised to ‘‘Chop out section of floor remove pipe and re-concrete’’. The landlord said that this job was closed ‘’after several attempts to contact. The supervisor estimates more than four attempts being made’’. No evidence has been provided to support this.
On 23 September the resident called the landlord as he was not happy that the matter was still unresolved and that he did not feel patching up is what was required.
On 25 September 2019, the landlord’s visited the resident’s property again. The manager and officer that attended noted that the vinyl had been taken up and so they could see that the ‘‘screed near the bathroom door was slightly uneven’’ and that the ‘‘screed near front door was loose and bounced when jumped on’’. The landlord noted that the resident said that he had tripped on the screed. The landlord agreed to re-screed a larger area, which required the removal of a number of asbestos-containing tiles. The landlord also noted that the resident had claimed that he had tripped on a radiator pipe.
On 29 September the landlord raised another new job to ‘‘Take up section of floor covering to front of living room door rescued floor, re-screed floor to front of bathroom floor to leave an even surface’’. The landlord noted that the resident was happy with plans for the flooring and agreed to have works carried out 30 September 2019. The landlord further noted that on 30 September 2019 it called the resident to arrange a time for its contractor to attend that morning, but the resident cancelled. The landlord noted that the resident said that it was not convenient, and that the landlord was ‘‘bullying him by only giving him one hours’ notice’’. The landlord called the resident later that day to discuss the cancellation and a further appointment was arranged for 2 October 2019.
On 2 October 2019, a contractor, that the landlord said was qualified to remove non-licensed asbestos, attended the property to carry out the works. The contractor was accompanied by an officer from the landlord. The landlord noted that the resident left the property while the works were carried out and returned on completion to inspect his property and the works completed. The landlord noted that the resident was satisfied, and the landlord agreed to return the following day to complete the job, so as to allow for the concrete to dry.
On 3 October 2019, the resident called the landlord to say that he was ‘‘really upset’’ that the landlord had not followed Health and Safety procedures and that he would not allow access until the landlord had cleaned his property.
On 4 October 2019, the landlord wrote the resident, which it said was further to a conversation it said it had had with the resident the previous day. The landlord noted that the resident had said that he was unhappy with the repairs being carried out at his property. The landlord also noted that the resident had advised during their call that they ‘‘would not be allowing further access and would be referring the matter to the local press and seeking legal advice’’. The landlord said that in view of this it had instructed its contractors to suspend all repairs until further notice’’. The landlord asked the resident to let it know ‘‘once (he was) happy for (the landlord) to return and complete the works.
On 8 October 2019, the resident logged a formal complaint with the landlord about the repair to his hallway floor. The resident said that the repair had ‘‘not been carried out using Health and Safety Regulations’’. The resident said that asbestos tiling had been removed ‘‘without proper procedure and containment’’ and that ‘‘every item’’ in the property had ‘‘been exposed to dust and asbestos’’. The resident said that he would like to be compensated for ‘‘being exposed to asbestos dust, contaminated furniture throughout (his) flat’’ The resident said that he had been ‘‘left in an unsafe environment’’ and that ‘‘the job carried out failed Health and Safety Standards’’.
The landlord issued its Stage 1 response on 18 October 2019. In its response the landlord referred to a visit to the resident’s property, that day, to discuss his complaint. The landlord also confirmed that it had been joined on the visit by its Asbestos Surveying contractor ‘‘to check for any asbestos contamination as raised in (the resident’s) complaint letter dated 8 October 2019’’. The landlord said that when they arrived the resident had said that he ‘‘had further looked into the risk from floor tiles removal and no longer required the samples to be taken’’. The landlord said that when they arrived the resident had said that he ‘‘had further looked into the risk from floor tiles removal and no longer required the samples to be taken’’. The landlord went on to say that it had ‘‘confirmed with the contractor who carried out the floor tile removal that dust suppression was used, that as part of the removal procedure a type H vacuum cleaner was used to remove debris and that the tiles/debris were then double bagged and disposed of correctly’’. The landlord also said that the description the resident had given, during the visit, of the works carried out ‘‘appear confirm this account of the work process’’. The landlord said that it was therefore unable to uphold the resident’s complaint concerning the asbestos removal as ‘‘the materials do appear to have been removed in a safe manner’’. The landlord ended by saying that it would arrange another visit regarding the resident’s concerns about the partially completed repair to the floor and his request for a health and safety officer to visit his property. The landlord also advised the resident that if he was dissatisfied with its response he could request that his complaint be escalated to the next stage of its formal complaints process.
On 28 October 2019, the resident wrote to the landlord to ask that his complaint be escalated to the next stage as he did not accept the conclusions of the landlord’s Stage 1 response. The landlord wrote to the resident on 30 October 2019, explaining that in order to progress his complaint the resident would need to specify the reasons why he was dissatisfied with its Stage 1 response. Following telephone conversations between the landlord and the resident on 7 November 2019, it was agreed that the landlord would visit the resident’s property on 13 November 2019 to discuss his complaint.
The landlord visited the resident’s property, as agreed, on 13 November 2019. The landlord noted that the resident was unhappy that in its Stage 1 response the landlord had said that the bitumen had been removed when it had not. The landlord noted that on inspection ‘‘the surface was relatively smooth but there was a pattern which indicated the vast majority but not all of the bitumen had been removed’’. The landlord also noted that ‘‘it would have little or no impact on the screeding of the area’’. The landlord noted that the resident had suggested that cement and not concrete had been used that the resident had also pointed out a crack in the cement where it had dried. The landlord also noted that the resident said that the operative had ‘‘wanted to screed the area but (the resident) had stopped the work from taking place because he wanted competent people to undertake the work’’. The landlord noted that the resident said that correct procedure had not been followed regarding the tiles and asbestos, that he had banged his arm against the radiator in the hallway and broken a toe or toes tripping on the surface outside of the toilet because the floor was uneven, and that the property or works were making him ill. The landlord noted that the outcome the resident was seeking was for the floor to be level and safe to walk on. The landlord said that it would ‘‘have the channelled areas cemented and then when it was dried levelled with a sell levelling scree’’ and that ‘‘this would be screed up to the tiles that had not been removed’’. The landlord also suggested to the resident that he may wish to be elsewhere when the works were carried out and that the resident said that no one had previously considered his need to access the toilet.
During the visit the resident also raised reported the following issues, which that landlord said had not previously been raised:
1. A plug in the bedroom which did not have switches. The landlord said, whilst it was not in disrepair, it would nevertheless look into it.
2. Damp in the main bedroom. The landlord noted that ‘‘the wall was bone dry to the touch and there was no evidence of either a tide mark, discolouration or any mould whatsoever’’ and ‘‘there appeared to be no damp’’.
3. Damp in the 2nd bedroom. The landlord noted that ‘‘there was a discolouration on the external wall which suggested water had at some time run down the wall’’. The landlord agreed to look into this.
4. Damp in the living room. The landlord noted that ‘‘there was no evidence of discolouration or mould’’.
5. That the landlord’s officer that had visited him on 30 July 2020 had laughed at him and that the landlord knew that he suffered from asthma but did not take this into account when doing the works.
On 15 November 2019, the landlord raised a new job to ‘‘Chop out uneven floor and around pipe in hallway (adjacent to bathroom) and then apply self-levelling screed to hallway floor area in front of bathroom door, also in front of lounge and front external doors so that its flush with the floor tiles’’. The landlord also raised a second job for ‘‘the double socket in the end bedroom to be changed for one with switches and a third job for a plumber to check the falls on the guttering on the front elevation and also to check that the fallpipe is not blocked’’.
On 19 November 2019, the resident called the landlord. During the call the resident said that he had received a call, from someone he thought to be the landlord’s contractor, regarding the works to the gutter, the plugs in the bedroom and the floor. The resident said that the contractor had wanted to carry out the works on 27 November 2019, but he was concerned about letting them into his property because he did not think they were competent. The landlord noted that the resident mentioned he had tripped and broken two toes and was seeing a solicitor about seeking compensation for his injuries and the way he had been treated.
On 3 December 2019, the resident called the landlord. The landlord noted that the resident had said that:
1. The electrician who changed the appliance sockets said they were outdated which meant that the property have never been inspected.
2. He was seeking compensation for contamination of his possessions and that he had costed his possession as being worth £15,000. The resident also said that he was paying £9 per week for carpets but there was no lino down.
3. He had had another accident on the 29 November 2019, which was the 3rd accident he had had, and he wanted compensation for the injury to his arm.
4. The resident also repeated his concerns about the damp in his property.
The landlord wrote to the resident on the 12 December 2019 to advise the resident that there had a been a delay in it carrying out its interview with the Asbestos Specialist Operative who carried out the work at this property. The landlord explained that this was because the operative was off work and the landlord was unsure of when he would return to work.
The works to the resident’s hallway floor, raised on 15 November 2019, were completed on 13 December 2019 and the vinyl floor covering re-laid on 18 December 2019.
On 19 December 2019, the landlord called the resident. The landlord noted that during the call the resident started by saying the hall floor covering was fitted the previous day and was “mint” and that he was “megga chuffed”. The landlord noted that the resident then re-iterated his concerns regarding damp and that whilst the sockets had been changed in his bedroom, the property had not been properly repaired when it was let to him. The landlord also noted that the resident again questioned the landlord’s handling of the removal of the floor tiles, stating that:
1. The operative was using a hammer and shovel to remove the tiles and so he stopped him.
2. He had photo’s showing the hoover was not used and the operative had used a dustpan and brush.
3. Everything he owned got contaminated with asbestos and that he wanted payment for the contamination and the scars on his arms.
4. The pipe which had stuck up the radiator should have been removed but was beaten down to floor level and a concrete ramp put over it. The resident said that the trips had taken place after the floor covering was put down and were in the area outside the toilet towards the radiator.
On 7 January 2020, the landlord interviewed the Asbestos Specialist Operative that carried out the works to the residents floor and his supervisor.
20 Jan 2020, during a telephone conversation with the resident, the landlord I advised that the Asbestos Specialist Operative had now been interviewed and that it would aim to get a response to him by the end of the week. The resident expressed his concern that the landlord had interviewed witnesses but not him, which the landlord disputed saying that it had met with the resident in his home and discussed the matter with him then. The landlord also advised the resident that ‘‘claiming for damage to his possessions and personal injury was an insurance claim’’.
The landlord issued its Stage 2, and final, responseon 28 January 2020. The landlord provided a timeline of events up until 13 December 2019.The landlord also said that it had met with the resident at his home to discuss the complaint, and had interviewed its Partnering Manager, Quality Assurance & Customer Compliance Officer, Area Technical Officer, Compliance Officer, and both the Asbestos Specialist Officer and their supervisor. The landlord also said that it had also ‘‘interrogated’’ the data base used to order and monitor repairs to its properties and read the advice on the Health and Safety Executives’ website on the Non-licensed work with Asbestos and Removing asbestos –containing floor tiles and mastic’’.
The landlord said that it could not reasonably uphold the resident complaint that the landlord failed to follow health and safety procedures whilst removing asbestos containing floor tiles from the resident’s home. The landlord said that it agreed that ‘‘it is particularly important to have robust procedures in respect of asbestos and its removal’’. However, there is ‘‘a relatively small risk from the removal of asbestos in floor tiles, especially when a small number of tiles are being removed. One reason for the low risk is the fibres are within a bonded matrix meaning the asbestos is less likely to be released. It is for this reason that the removal of such tiles is non-licensable’’. The landlord said that it had included a copy of the Health and Safety Executive good practice guide, a23 Removing asbestos-containing floor tiles and mastic, so that the resident was ‘‘fully aware of what the H&SE’s considers good practice’’. The landlord said that ‘’between 9 – 12 tiles were removed’’, ‘‘the majority of the tiles lifted away with no or little force’’, ‘‘the remainder were lifted following good practice guide a23 using the edge of a scraper with the nozzle of the hoover in close attendance to suck up any dust or possible fibre release’’ and that ‘‘the operative claims he used a spray to suppress any possible release’’. The landlord said that it had shown the resident’s photos to the operative of the red bag showing the hoover was not in use, and the operative had said that he had finished removing the tiles. The landlord said that it could not agree that the photo proves the hoover was not used during the operation. The landlord said that in the other two photos the operative was clearly seen wearing a mask. The landlord also said that its Officer ‘‘stood outside the property with the door open and could see and hear that the operative was wearing a mask and using the hoover and following procedure’’. The landlord also said that the operative claimed that when he told the resident that he was only to remove the asbestos floor tiles, the resident ‘‘became heated using foul and abusive language and to calm the situation down he agreed to chisel the concrete screed out, and at this point he did use a dust pan and brush to collect the screed while also using a suppressant’’. The landlord said that this was again confirmed by its Officer.
The landlord reassured the resident that the operative was qualified to remove non-licensable asbestos, that the operative was trained annually and holds a current certificate, and that the landlord had received copies of the operatives certificates and training record. The landlord also said that its officer had offered a swab test, to reassure the resident, but the resident had refused entry to his home for the test to be carried out. The landlord also said that it was the view of both the operative and its officer that the resident was invited to leave the flat, but he wanted to stay. The landlord also said that this was agreed on the condition that the resident ‘‘went into a room a kept the door shut’’. The landlord added that ‘neither (the operative or its offer) understand why (the resident) then opened the door and started taking photographs’’.
The landlord did not uphold the resident complaint that the time to complete the works was unacceptable. The landlord acknowledged that the resident had the right to challenge the works that had been proposed but the works finally agreed did not appear to be substantially different to what they had arranged with (the resident) on the 25 September 2019. The landlord also said that there had been issues with access. The landlord said that both of these issues had added ‘‘over two months’’ to the completion date.
The landlord said that its view was that the floor did not represent a trip hazard but lifting the vinyl had revealed a slight difference and as a good will gesture it was agreed to screed the area’’. The landlord said that it was difficult ‘‘to make a judgement on the view of the degree of the trip hazard because the screed area had been chiseled away and (it had) no photographic evidence to examine other than photographs of the vinyl surface before it was lifted’’. The landlord said that the photographs appeared to show the area was not a trip hazard ‘‘although photographs can be deceptive and the whole area is not shown’’. The landlord also said that, as it had advised during its visit of 13 November 2019, the resident’s allegation of trip injuries are matters which were best addressed through an insurance claim. The landlord said that were the resident to make such a claim it would supply its notes and comments recorded by contractors in support of any investigation.
With regards to the resident’s reports of damp in his property, the landlord said that it could not uphold the resident’s complaint. The landlord said that this was because inspections had shown ‘‘no signs of damp, the walls appeared dry, there was no discolouration and the wallpaper was tightly bonded to the wall’’. The landlord also said that it had checked the empty property inspection record which showed that each room had been tested and showed no sign of damp. In response to the resident’s concerns about the external discoloration at the top of the wall by his end bedroom, the landlord had arranged for the guttering be attended to and cleared.
The landlord did not uphold the resident’s complaint about the electric socket in his main bedroom. The landlord confirmed that the sockets complied with electrical standards and were safe, but as a gesture of goodwill and as the resident had said that it was difficult for him to bend down when the unplugged his TV, it had replaced the socket for a ‘‘new type with switches’’. The landlord also confirmed that it carries out electrical tests on its properties every five years or at change of tenancy, and that the last test was undertaken on the 6 November 2018.
With regards to the resident’s complaint about the behaviour of the landlord’s staff towards him, the landlord said that it had discussed the resident’s report that its officer had laughed at him when he said he had tripped outside his toilet, with the member of staff involved. The landlord said that its officerwas ‘‘adamant’’ that he did not laugh at the resident. The landlord acknowledged that it was ‘‘always difficult to form a judgement when (they had) have not been present and there are no witnesses to corroborate the incident’’ but that unless the resident had further evidence it could not uphold his complaint.
The landlord also did not uphold the resident’s complaint that its manager lied when he said he was unaware that the resident suffered from asthma. The landlord said that it had spoken to both its manager and another officer, and that the other officer recalled speaking to the resident when they carried out a joint visit on 25 September 2019 but the conversation was about ‘‘a relative who had a respiratory condition and the likely impact of the works on someone with a respiratory problem’’.
The landlord ended by saying that there appeared to be no grounds to compensate the resident but that he could submit an insurance claim against the landlord should he wish to continue to seek damaged. The landlord also advised the resident that if he was not satisfied with the outcome of his complaint, he could refer his complaint to the Housing Ombudsman.

Assessment and findings

Policies, procedures, and agreements

The tenancy agreement sets out the rights and responsibilities for the landlord and the resident. In general terms, the landlord is required to maintain and keep in good repair the structure of the building.
The tenancy agreement also states that the landlord must carry out repairs within a reasonable time and that the tenant must provide access for the works to be done.
Section 17(o) of the tenancy agreement provides specific information relating to asbestos stating that it is not reasonable or necessary for the landlord to remove all asbestos materials from every building. If the asbestos material is in good condition and cannot easily be damaged it is best left alone.
The landlord’s Repairs and Maintenance Policy states that Emergency and Urgent repairs would have a 5-day or less response priority and Non-urgent responsive repairs (which the policy describes as being where work is to be assessed, logged and issued on a programme of similar works) would have a 28 calendar day response time, from notification to order to contractor.
The landlord’s Repairs and Maintenance Policy also covers the removal of Asbestos. The policy states that the landlord is to assess whether the possible Asbestos containing material is licensable to non-licensable work and if the work is considered non-licensable, and if the work constitutes over and above a trade related job, a trained team are to respond. The landlord’s Repairs and Maintenance Policy also refers to the landlord’s Removal and Encapsulation procedure. A copy of this has not been seen by this service.
However, in its complaint responses the landlord made reference to it carry out works in accordance with HSE a23, ‘Removing asbestos-containing a23 floor tiles and mastic’ and sent a copy of this document to the resident and this service, I am satisfied that it is reasonable to use the information provided in that document as part of my investigation of this complaint.

Assessment

The Ombudsman’s role is to consider whether the landlord responded appropriately to the resident’s concerns by adhering to its policies, procedures, and any agreements with the resident, and that the landlord behaved reasonably, taking account of what is fair in all the circumstances of the case. This investigation has not sought to assess the standard of the works carried out by the landlord nor is it the Ombudsman’s role to do so.

Reports of disrepair to the resident’s hallway floor.

The resident complained that the landlord took months to carry out repair works to his hallway floor and that the landlord failed to follow the correct procedure when removing asbestos tiles from the hallway floor. The resident also expressed concern that the process the operative used that meant that he may be exposed to asbestos particles.
. The resident has also complained that in the meantime he was left with an uneven floor and an exposed pipe which the resident said was a trip hazard.
The resident initially reported that his hallway floor was uneven on 1 April 2019. The same day, the landlord raised a job to screed a crack in the resident’s hallway floor, the job was raised as a Non-urgent responsive repair and the contractor attended the property to carry out the works 8 days later, on 9 April 2019. This was appropriate and in accordance with timescales given in the landlord’s Repairs and Maintenance Policy.
During the visit on 9 April 2019, the contractor that attended the property, reported to the landlord that the works were not completed as a further inspection by the landlord was required. The contractor explained that this was because below the cushioned flooring there were tiles that they suspected may contain asbestos. The contractor also said that the cushioned flooring needed removing, the tiles removed, the floor releveled and the flooring refitted.
The HSE guidance states that when the presence of asbestos is suspected,arrangements should be made for a sample to be taken by a competent person and analysed or, alternatively, presume that any material you need to disturb contains the most hazardous types of asbestos. There is no evidence that the landlord carried out any analysis of the tiles. The landlord said that its officer had offered a swab test, to reassure the resident, but the resident had refused entry to his home for the test to be carried out.
The HSE guidance also states that when the presence of asbestos is suspected, consideration needs to be given as to whether there may be low fibre release when the material is disturbed and in if the material is in good condition. Whilst the landlord said that it contacted the resident on 11 April 2019 to discuss the repair, there is no evidence of the landlord taking any further action with regards assessing the condition of the tiles at this point.
The next action taken by the landlord was on 30 April 2019 when a new job was raised to ‘‘lift furnished flooring by wet room and level off floor underneath’’. The landlord reported that the job was attended on 30 May 2019, but access was not gained. The new job made no reference to the potentially asbestos containing tiles nor is there any evidence of the landlord carry out any further investigation into the floor tiles at that point.
The landlord raised a further job to ‘‘lift furnished flooring by wet room and level off floor underneath’’ on 7 June 2019, which was cancelled. The landlord said that the reason the job was cancelled was because the resident had been concerned about the use of ‘‘wet room’’ in the job description. However, the resident has disputed this, telling this service that when the contractors turned up they had come to do the wet room floor and when he told them it was his hallway floor, and that he did not have a wet room, they left. Again, the new job made no reference to the potentially asbestos containing floor tiles nor is there any evidence of the landlord carry out any further investigation into the tiles at that point.
It was not until 18 June 2019, following a visit to the resident’s property, that the landlord raised a new job to ‘‘Take up hallway floor covering and remove tripping hazards to concrete floor, possibility of asbestos floor tiles around the lifted area which may need removing and screeding to maintain level of flooring underneath’’.
An appointment was made with the resident for the works to take place on 2 July 2019.It is unclear why the appointment did not go ahead on 2 July 2019. On 10 July 2019, the resident contacted the landlord to say that he had say that he had waited at home all afternoon, but no one attended.
The landlord’s records note that its contractor then attempted to carry out the works on 18, 19, 22 and 24 July 2019 but there had been no one at the property.The contractor advised the landlord that it had rescheduled the appointment for 29 July 2019. There is no evidence that this appointment went ahead, however, the landlord did visit the resident’s property again on 30 July 2019 following which the landlord raised another job on, 31 July 2019,to ‘‘Chop out section of floor remove pipe and re-concrete’’. However, the landlord said that this job was closed ‘’after several attempts to contact’’ the resident.
The landlord then visited the resident’s property again on 25 September 2019 and at this point the landlord agreed to re-screed a larger area, noting that this required the removal of a number of asbestos-containing tiles.
The work to remove the asbestos tiles was carried out until 2 October 2019. In accordance with its Repairs and Maintenance Policy, an Asbestos Specialist contractor was engaged to carry out the works. Whilst this was appropriate, it is of concern that the works were not carried out that almost six months after the landlord’s contractor had flagged the flooring tiles up as a concern.
The landlord acted appropriately in response to the resident’s complaint that the landlord failed to follow the correct process when removing the asbestos tiles, by carrying out an investigation, meet with the resident at his home to discuss the complaint, interviewing its Officers and Manager that had visited his property, and interviewing both the Asbestos Specialist operative and their supervisor. The landlord had also been joined on its visit to the resident’s property on 18 October 2019, by its Asbestos Surveying contractor ‘‘to check for any asbestos contamination as raised in (the resident’s) complaint letter dated 8 October 2019’’. The landlord said that when they arrived the resident had said that he ‘‘had further looked into the risk from floor tiles removal and no longer required the samples to be taken’’. Having conducted its investigation, the landlord concluded that it was satisfied that the correct procedures had been followed, referring to HSE a23, ‘Removing asbestos-containing a23 floor tiles and mastic’ guidance in doing so, and that it was therefore unable to uphold the resident’s complaint concerning the asbestos removal as ‘‘the materials do appear to have been removed in a safe manner’’.
The landlord specifically referred to dust suppression being used; a type H vacuum cleaner used to remove debris and that the tiles/debris where then double bagged and disposed of correctly. The landlord also said that the operative claimed that when he told the resident that he was only to remove the asbestos floor tiles, the resident ‘‘became heated using foul and abusive language and to calm the situation down he agreed to chisel the concrete screed out, and at this point he did use a dust pan and brush to collect the screed while also using a suppressant’’.
The works to screed and level the hallway floor were also not completed 13 December 2019 and the vinyl floor covering not replaced until 18 December 2019.
Having considered the evidence, I am satisfied that there was service failure by the landlord in respect to its response to the resident’s Reports of disrepair to his hallway floor.
Whilst there may have been delays due to access issues and in agreeing on the works to be carried out, these alone cannot reasonably account for the six month delay in removing the potentially asbestos containing tiles in the resident’s hallway floor tiles nor the eight months to complete the overall repairs to the resident’s floor. There is also limited evidence of the landlord actively pursuing the repairs. Even taking into account the two months that the landlord cited as being added to the completion date this would still mean that the works took four and six months respectively to complete which is neither reasonable nor in accordance with the landlord’s policies and procedures.
With regards to the specific issue of the removal of the asbestos tiles. I am not satisfied that the landlord took all reasonable steps, within a reasonable time, to identify whether there was asbestos in the floor tiles nor whether any of the tiles where damaged. In the absence of any evidence of the landlord having to tender for these works to be carried out, I am also satisfied that there was an unreasonable delay in the landlord arranging for the tiles to be removed.
However, I am satisfied that the landlord acted reasonably with regards to the removal of the tiles. This it did by engaging a specialist contractor, in accordance with its Repairs and Maintenance Policy, carrying out an investigation into the resident’s concerns and confirming that it had satisfied itself that the correct procedures had been followed.
As I have explained previously, whilst the Ombudsman can determine whether the actions of the landlord were reasonable, or not, we cannot make a definitely determination as to whether any of the actions of the landlord would constitute a breach of Health and Safety regulations, nor do we have the expertise to do so.
The Ombudsman’s approach to matters such as compensation for distress and inconvenience is based upon our Dispute Resolution Principles (be fair, put things right and learn from outcomes) and is in line with the Public Sector Ombudsmen Principles for Remedy, which set out the general guidance.
Taking into account the service failures noted above in respect of the delays, the impact this has had on the resident, I am satisfied that£200compensation would be reasonable and proportionate in this instance.

With regards to the resident’s reports that he tripped and injured himself as a result of the disrepair to his floor. Whilst I appreciate the upset and distress this matter has caused the resident, the Ombudsman is not able to determine matters of liability or causation and does not award damages in the way that a court might. As advised by the landlord in its response of 28 January 2020, should the resident wish to pursue his claim for compensation for any injury he may have incurred this would be better dealt with as a personal injury claim.

Reports of damp in the resident’s property and the residents’ concerns about the electric sockets in the resident’s main bedroom.

The resident first reported his concerns about these matters during the landlord’s visit to his property on 13 November 2019 to discuss his request to escalate his complaint to Stage 2. Whilst these matters did not form part of the resident’s original complaint, the landlord did provide the resident with a full response in its final response of 28 January 2020 and so have also been considered as part of this investigation.
During the visit the landlord inspected the property. The landlord noted that the wall in the main bedroom was ‘‘bone dry’’ and that there was no evidence of damp in either that room or the living room. The landlord did however note that there was ‘‘a discolouration on the external wall’’ in the 2nd bedroom which it agreed to look into. Whilst it said it was not a repair the landlord also agreed to look into the resident’s concerns that plug in his main bedroom did not have switches.
Two weeks later, on 27 November 2019, in accordance with its policy timescales for Non-Urgent repairs, the landlord’s contractor attended the resident’s property and cleared the gutter and two downpipes, and resealed the joints. The double electrical socket in the resident’s bedroom, which did not have switches on, was also replaced with a switched socket. In its final response the landlord said that this was done ‘‘as a gesture of goodwill and as the resident had said that it was difficult for him to bend down when the unplugged his TV, it had replaced the socket for a ‘‘new type with switches’’.
The resident later raised concerns that his electrical sockets were outdated which meant that the property had never been inspected. In response the landlord confirmed that that it carries out electrical tests on its properties every five years or at change of tenancy, that the last test was undertaken on the 6 November 2018 and that the sockets complied with electrical standards and were safe. A copy of the test certificate has been seen by this service. In its final response the landlord also said that it had checked the empty property inspection record which showed that each room had been tested and showed no sign of damp.
Having considered the evidence, I am satisfied that there was no service failure by the landlord in respect to its response to the resident’s reports of damp in the resident’s property or the resident’s concerns about the electric sockets in the resident’s main bedroom.

With regards to the resident’s complaint about the conduct of the landlord’s staff towards him.

When there are conflicting versions of events, the landlord is expected to investigate the allegations and address the concerns raised by the resident.
The resident first reported his concerns about these matters during the landlord’s visit to his property on 13 November 2019. Following the resident’s reports, the landlord acted appropriately by carrying out an investigation into his allegations. Following its investigation, the landlord advised the resident that, without further evidence, it had been unable to uphold his complaint as it had found no evidence to substantiate his allegations.
The landlord did however acknowledge that it was ‘‘always difficult to form a judgement when (they had) have not been present and there are no witnesses to corroborate the incident’’.
Having considered the evidence, I am satisfied that there was no service failure by the landlord in respect to its response to the resident’s complaint about the conduct of the landlord’s staff towards him.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its handling of the resident’s reports of disrepair to his hallway.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no service failure by the landlord in respect of the landlord response to the resident’s reports of damp in his property.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no service failure by the landlord in respect of the landlord response to the resident’s concerns about the electric sockets in his main bedroom.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no service failure by the landlord in respect of the conduct of the landlord’s staff towards the resident.

Reasons

Whilst there may have been delays due to access issues and in agreeing on the works to be carried out, these alone cannot reasonably account for the six month delay in removing the potentially asbestos containing tiles in the resident’s hallway floor tiles nor the eight months to complete the overall repairs to the resident’s floor.
The landlord acted appropriately in relation to the resident’s reports of damp in the resident’s property by carrying out works to address the concerns raised by the resident within the required timescales.
The landlord acted appropriately in relation to the residents’ concerns about the electric sockets in the resident’s main bedroom by carrying out works to address the concerns raised by the resident within the required timescales.
The landlord acted appropriately in relation to the resident’s allegations about its officers by carrying out an investigation into the resident’s allegations and advising the resident of the outcome of those investigations. Having been unable to substantiate the claims but the resident, it was reasonable for the landlord to not uphold the resident’s complaint.

Orders

Within the next six weeks the landlord is ordered to pay the resident a total of £200 compensation as redress for the delays in the landlord carrying out repairs to his hallway any distress and inconvenience experienced by the resident as a result of the identified service failures.