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Royal Borough of Kensington and Chelsea (202313802)

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REPORT

COMPLAINT 202313802

Royal Borough of Kensington and Chelsea

28 February 2025


Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

  1. The complaint is about the landlord’s handling of:
    1. A leak affecting the resident’s property including the repairs and the level of compensation.
    2. Asbestos in the property including the level of compensation.

Background

  1. The resident lives in a second floor flat with 3 bedrooms. Her spouse has a secure tenancy that started on 29 March 1999. The resident’s household has no noted vulnerabilities. The resident brought this complaint to the landlord and to the Ombudsman acting as her spouse’s representative.
  2. On 8 December 2022, the resident reported a leak. The landlord sent out roofers. On 15 January 2023, the resident complained about the ongoing leak. She said it had entered her bathroom. The resident told the landlord this had damaged the ceiling and walls. The landlord provided its stage 1 response on 30 January 2023 and said:
    1. it raised a job on 9 December 2022 and a roofer attended on 11 January 2023, and they unblocked and cleared outlets and sealed parts of the roof structure.
    2. it apologised for the delay in attending and for not monitoring this, and it agreed to feedback to staff and its contractor to improve their service.
    3. it agreed to check her neighbour’s pipework on 30 January 2023 and repair any damage caused to the bathroom after it repaired the leak.
    4. it upheld the resident’s complaint.
  3. On 30 January 2023, the landlord found the leaks were coming from a property 2 floors above the resident’s, which was a leaseholder’s property. The resident told the landlord the leak stopped around 24 February 2023. On 27 March 2023, the landlord agreed to:
    1. reskim the bathroom ceiling.
    2. increase the height of the tiling up to the ceiling.
    3. replace the resident’s bath.
  4. The resident first escalated the complaint on 10 May 2023 but withdrew this before escalating her complaint again on 16 May 2023. The resident complained about the level of communication and progress of the work.
  5. On 16 May 2023, the landlord started the repair work referred to above. On this date, the landlord noted the possible presence of asbestos in the textured coating of the resident’s bathroom ceiling. This stopped the work while the landlord assessed this on 17 May 2023. The landlord provided its stage 2 response on 30 May 2023 and said:
    1. it identified and stopped the source of the leak after 30 January 2023 but there were delays in it doing remedial work to the bathroom and updating the resident on this.  
    2. the delays were because it found asbestos, which it needed to remove before it could complete these works.
    3. it accepted the resident’s concerns about living in a property containing asbestos and it arranged an air quality test for 31 May 2023 to check for asbestos fibres.
    4. its asbestos contract manager had assessed the risk of asbestos exposure as very low, but it would remove it on 7 June 2023 and carry out remedial work on 9 June 2023.
    5. it would monitor the mould and action work on a bedroom window, and it gave the resident a point of contact.
    6. it awarded the resident £350 compensation for her time and trouble.
    7. it upheld the resident’s complaint.
  6. Following the landlord’s final response the resident offered the landlord “feedback” about the repairs. The resident also expressed unhappiness that the landlord had not identified the presence of asbestos before May 2023. The landlord sent the resident another response on 21 June 2023 and said:
    1. it wrongly referred to mould in its stage 2 response and acknowledged the resident chased it between January 2023 to May 2023, and it accepted there was a delay in it doing the remedial works.
    2. it apologised it took longer than it should have to fit the bath, bath panel, and aqua panels.
    3. it would complete any snagging works on 22 June 2023 in relation to the bathroom, which included:
      1. resealing aqua panels.
      2. removing and renewing trims.
      3. applying another coat of paint to the pipework.
      4. removing excess paint from the flexi hoses and isolator valves under the basin.
      5. Painting.
      6. renewing the bathroom pull cord switch.
    4. it apologised it had misunderstood the resident and accepted the discovery of the asbestos did not cause the delay to the start of the work.
  7. Between 12 June 2023 to 26 June 2023, the landlord completed this work but noted there was some staining visible on the bathroom ceiling on 23 June 2023. While the resident accepted the landlord’s compensation of £350 on 12 July 2023, she complained to the Ombudsman that she remained unhappy with the amount. The resident wanted an increased amount because of the distress caused by asbestos exposure. The resident also said the repair works were not completed until 26 January 2024, which caused distress.

Assessment and findings

The scope of investigation

  1. The Ombudsman acknowledges there were also reports of water staining on the resident’s bathroom ceiling on 23 June 2023. There was uncertainty over the cause of this. There is also an absence of evidence to show a connection to the leak the resident reported on 8 December 2022. What is clear is the landlord’s handling of any reports of leaks or repair work after the end of June 2023 did not go through its complaint procedures.
  2. Paragraph 42.a. of the Scheme states the Ombudsman may not consider complaints a resident has made before the landlord’s complaint procedure is exhausted. Therefore, the landlord’s handling of the leak and repair work after the end of June 2023 are outside the scope of this investigation under paragraph 42.a. of the Scheme. This investigation will consider the landlord’s handling of leaks following the resident’s report of 8 December 2022, and which was the subject of her complaint on 15 January 2023, up until its final response, and any commitments the landlord made in this.
  3. The Ombudsman acknowledges the resident told the landlord the time it took it to do repair work affected her mental health and caused her distress. The resident also expressed concerns the landlord’s actions exposed her to asbestos, which may result in personal injury. When personal injury disputes arise, courts rely on expert evidence in the form of a report from an independent medical professional. This will give an expert opinion on the cause of any injury or decline in health. A court will also allow examination of witnesses and allow the evidence to be tested. This process helps the court determine whether the landlord’s actions or inactions have harmed a resident.
  4. Paragraph 42.f. of the Scheme states we may not consider complaints where it would be quicker, fairer, more reasonable, or more effective to seek a remedy through the courts or other tribunal or procedure. This investigation will not consider the issue of personal injury because we do not have the authority or expertise to do so in the way a court might. This is in line with paragraph 42.f. of the Scheme. The Ombudsman notes the resident’s concerns about finding asbestos within their home. While the Ombudsman’s role is not to assess the level of asbestos or risks because we do not have the authority or expertise to do so, we can look at the landlord’s response to her concerns. This can include whether the compensation offered proportionately reflected the distress and inconvenience caused.

The landlord’s handling of a leak and repairs

  1. The resident reported a leak on 8 December 2022. The landlord’s initial response to this report was to send out roofers to check if the cause of the leak was related to the roof. This was a reasonable action as roofs can cause leaks and the landlord was responsible for the roof, gutters, and down pipes. This was under the resident’s tenancy agreement. The landlord’s repairs policy required it to deal with any minor containable leaks within 5 working days. The roofer did not attend until 21 working days later on 11 January 2023. Therefore, the landlord’s response was unreasonable, as it was not in line with its repair policy.
  2. The roofer who attended recommended the landlord do further internal pipework checks, including checking the property above the resident’s. The landlord completed this check on 30 January 2023. In the absence of any evidence to explain the reason for the time it took the landlord to do this, the 13 working days it took from 11 January 2023 was unreasonable. The landlord found out the leak was coming from a neighbouring property on 30 January 2023. As the neighbour was a homeowner (leaseholder) they were responsible for repairing the leak. Therefore, the landlord was not under a duty to fix this. It agreed to ask the leaseholder to repair this, which was appropriate.
  3. The resident told the landlord the leak had stopped around 24 February 2023. Between 2 to 17 February 2023, the landlord contacted the leaseholder no less than 3 times to ask them to repair the leak. Therefore, based on the available evidence, the landlord made reasonable efforts to get the leaseholder to repair this leak once it became aware of its source.
  4. On 30 January 2023, the landlord said it needed to inspect the resident’s property for any damage and to arrange repairs. It also told the resident on 2 February 2023 it needed to look at her ceiling to confirm it was safe. The landlord ought to have done so within a reasonable time of this. This is because the landlord was responsible for ensuring the property was safe and free from any defects that may cause harm. This is under Defective Premises Act 1972. The evidence shows the landlord did not inspect the resident’s property until March 2023. In the absence of evidence to explain the length of time it took to inspect, this was an unreasonable delay.
  5. The landlord said it inspected the resident’s property on 14 and 27 March 2023. It arranged to start the repair work it agreed on 27 March 2023 (referred to in the background) on 16 May 2023. The landlord’s records show it completed these works on 26 May 2023, apart from fitting one bath trim, with some painting work completed by 13 June 2023. The resident said she had to chase this work 31 times between January to May 2023. The landlord accepted the resident had to chase this work and this was unacceptable. The landlord put the resident to a considerable amount of distress and inconvenience. The landlord did not complete this work within 20 working days but 40 working days after its 27 March 2023 inspection. Therefore, this was a failure as this was outside its repairs policy.
  6. The landlord said it agreed to do additional snagging jobs, referred to in the background. It said it identified these jobs on 15 June 2023 and agreed to complete them on 22 June 2023. The landlord listed these in its follow up stage 2 response showing a connection to the earlier work it completed. It was appropriate of the landlord to raise these, as it noted shortcomings in the work it did previously. We cannot verify when the landlord identified the need to do them based on the available evidence. Nevertheless, the landlord’s repair records do not refer to the snagging list jobs before 22 June 2023 and show the landlord completed them on 26 June 2023. Therefore, it appears the landlord completed these in line with the timeframe for routine repairs in its repairs policy (20 working days).


The landlord’s handling of asbestos    

  1. The resident expressed unhappiness at the length of time the landlord took to identify asbestos in her property. The presence of asbestos is a significant health and safety risk where disturbed or damaged. The landlord was under a duty to make sure the property was fit for human habitation by being free from hazards, including from asbestos. This is under Landlord and Tenant Act 1985, sections 9A and 10. The Ombudsman acknowledges the understandable concern the damaged ceiling with asbestos caused the resident.
  2. While the landlord inspected the property in March 2023, it ought to have done so earlier and the delay in inspecting was a failure. It also did not notice the bathroom ceiling had a textured coating associated with asbestos until 16 May 2023, which was a second failure. The landlord accepted it ought to have identified this on 27 March 2023, when it inspected. Had it done so, it could have taken steps to assess it and remove this earlier, in line with its asbestos management plan. This omission led to a delay in the landlord following this plan and meant it was unable to show before then that the property was free from an asbestos hazard.
  3. In contrast, the landlord’s actions following discovery of the asbestos were reasonable. This is because this was in line with its asbestos management plan. The landlord arranged for an asbestos survey and explained its asbestos contractor manager had assessed the risk of exposure to the resident was very low. It also conducted an air test for asbestos fibres on 31 May 2023, which found the result for the property was satisfactory. The landlord’s actions intended to offer the resident reassurance and were appropriate. The landlord ought to have shared the results of its asbestos survey immediately after it completed this on 17 May 2023. Its failure to do this meant it lost an opportunity to manage the resident’s understandable concerns and caused her avoidable distress.

The level of compensation

  1. The landlord offered the resident £350 compensation for its failures. The resident felt this did not reflect the distress caused and the effect on her mental health. While the Ombudsman cannot assess the impact of the delays on the resident’s mental health, we can award compensation for distress.
  2. The resident also complained the landlord left her exposed to asbestos for around 6 months. This was between when the resident reported the leak in December 2022 to when the landlord removed the asbestos in June 2023. The resident told us this caused her significant distress. However, the period between when the resident was first made aware of the asbestos by the landlord to when it removed it was 22 calendar days from 16 May 2023 to 7 June 2023. Therefore, the Ombudsman must consider this in assessing the fairness of the landlord’s compensation offer.
  3. Our remedies guidance states it is appropriate to award compensation of up to £600 where there has been maladministration that has caused a detriment to the resident, but which has had no permanent effect. In this case, the landlord’s above delays caused the resident a significant amount of distress and inconvenience and involved her in time and trouble.
  4. It is therefore appropriate to award a higher level of compensation in line with our remedies guidance. This is because the offer the landlord made did not fully take into account the combined level of failure. This included the effect of those combined failures over a period. Therefore, the Ombudsman has made an award of £250 further compensation over and above the compensation the landlord has already paid the resident to reflect our remedies guidance’s above recommendation.

Summary and findings

  1. The Ombudsman has made the following findings:
    1. there was an unreasonable delay in the landlord responding to the report of a leak (8 December 2022 to 11 January 2023) that was not in line with the landlord’s repairs policy.
    2. we cannot be satisfied the landlord acted reasonably in the time it took to inspect the neighbour’s property (30 January 2023) from when its roofer said it should (11 January 2023) given the lack of explanation for any delay.
    3. once the landlord discovered the source of the leak (a neighbouring property) it took reasonable steps to get the leaseholder to repair the leak.
    4. there was an unreasonable delay in the landlord inspecting the resident’s property because the landlord agreed it needed to do this on 30 January 2023, but it did not do so until March 2023.
    5. there were delays in the landlord completing the work it raised on 27 March 2023.The landlord did not complete this until 26 May 2023, which was not in line with its repairs policy, and this involved the resident chasing the landlord multiple times, which was unacceptable.
    6. based on the available evidence, it appears the landlord completed the snagging jobs it identified in June 2023 within a reasonable time.
    7. the landlord ought to have identified the presence of asbestos before 17 May 2023 because it inspected the property in March 2023, and it ought to have visited before then.
    8. once the landlord discovered the presence of asbestos, it acted reasonably and in line with its asbestos management plan, but it should have shared its asbestos survey at the time it completed it.
  2. Overall, the Ombudsman finds the landlord’s handling of the leak and repairs, and of asbestos, amounted to maladministration. This is because it failed to act reasonably or in line with its repairs policy on several occasions, and this caused significant distress to the resident. Therefore, the Ombudsman has made an order for the landlord to apologise to her. As it is unclear what actions the landlord has taken in respect of the other areas of the resident’s property referred to in the asbestos survey, the Ombudsman has made an order for it to inspect this and complete a case review of what went wrong. We have also recommended the landlord review its process for checking its staff have up to date asbestos management training and the quality of this.

Determination

  1. In accordance with paragraph 52. of the Scheme, there was maladministration in the landlord’s handling of a leak affecting the resident’s property including the repairs and level of compensation.
  2. In accordance with paragraph 52. of the Scheme, there was maladministration in the landlord’s handling of asbestos in the property including the level of compensation.

Orders and recommendation

Orders

  1. Within 28 days of the date of this determination, the landlord must:
    1. arrange for a director to write to the resident with an apology.
    2. inspect other parts of the resident’s property suspected of containing asbestos referred to in the asbestos survey or otherwise explain the reason it does not need to inspect these.
    3. if the landlord inspects the property and finds asbestos, it must share the plan with the resident and Ombudsman of how it aims to manage any remaining asbestos, this must set out what action the landlord will take and by when.
    4. pay the resident directly £250 further compensation (on top of the £350 it has already paid) made up of:
      1. £100 for the distress and inconvenience caused to the resident by the landlord’s handling of the bathroom leak and repairs.
      2. £150 for the distress and inconvenience caused to the resident by the landlord’s handling of asbestos.
  2. The landlord must provide us with evidence of compliance with the above orders within 28 days of the date of this determination.
  3. Within 56 days of the date of this determination, the landlord must:
    1. review what went wrong in this case and how it can make improvements to its response to leaks and identifying asbestos following a report of repairs. The landlord must provide a copy of this review to the Ombudsman within 56 days of the date of this determination.

Recommendation

  1. The Ombudsman recommends, within 56 days of the date of this determination, the landlord should review the process it has for checking staff have up to date asbestos management training and review the quality of this.