Southampton City Council (202319968)

REPORT

COMPLAINT 202319968

Southampton City Council

30 April 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

The complaint is about:
1. the condition of the property when let in 2010.
2. the landlord’s handling of an asbestos incident in 2017.
3. the landlord’s handling of a ceiling repair.
4. the landlord’s response to the resident’s concerns about asbestos.
5. the landlord’s response to the resident’s concerns about contaminated ash and air quality.
The Ombudsman has also considered the landlord’s complaint handling.

Background

The resident is a secure tenant. He has lived at the property since 2010. The property is a one bedroom flat. The resident suffers from various physical and mental health conditions.
On 19 September 2021 the resident contacted the landlord and reported that water was leaking through his living room ceiling. The landlord attended the same day and found the leak was caused by a fish tank that had exploded in the flat above. It ensured the ceiling would not collapse, pending full repair, and taped bags to it. The bags had the words “asbestos hazard” printed on them.
On 27 September 2021 the resident sent an email to healthcare workers and an email to a disability support organisation. In the emails he outlined his concern that his living room ceiling contained asbestos and the landlord had not yet fully repaired it. He said his living conditions had become “intolerable”. He asked the healthcare workers for support as he said the stress of the incident combined with the dust it created had aggravated his medical conditions. He outlined that these conditions included chronic lung disease, anxiety, panic attacks and self-harm.
The following day the resident sent the landlord a copy of the emails he had sent to the healthcare workers and disability support organisation. He also told the landlord he was concerned about “possible contamination” from asbestos in his home, and said it was causing him “emotional strain”. He asked if it would assist him with storing his possessions and provide temporary accommodation pending resolution of the matter.
The resident sent a further email to healthcare workers, and copied in the landlord, on 30 September 2021. He said he was unable to “breathe properly” in the property due to “huge amounts of dust”. He said the dust was caused by the ceiling leak and was also “coming down the flue”. He expressed concern that the dust was “contaminated with asbestos”. He said he was in a “terrible” emotional state and that he had heard nothing from the landlord.
The resident sent the landlord follow up emails on 11 October 2021 and 11 November 2021. The landlord advised him on 12 November 2021 that if the repair team had not been in touch with him about the ceiling, he could raise a formal complaint. It said it would make his housing officer aware of the situation.
By 16 November 2021 the resident had heard nothing further from the landlord. He therefore emailed an elected representative. He explained that 2 months had passed since the incident and he had heard nothing from the landlord about repairs to the ceiling or asbestos testing. The elected representative contacted the landlord about this. It then made internal enquiries and took the following action in relation to the living room ceiling:
1. it attended the property and took samples from the ceiling.
2. it tested the samples and confirmed internally on 2 December 2021 that they did not contain asbestos.
3. it advised the resident during a phone call on 15 December 2021 that the asbestos test was negative.
Following the phone call on 15 December 2021, the resident sent an email to the landlord the same day. He expressed concern that while the living room ceiling had tested negative for asbestos, there may be asbestos contamination elsewhere in the property. He referred to an asbestos survey carried out by the landlord which showed that a bedroom ceiling and thermoplastic floor tiles were ‘presumed’ to contain asbestos, although the landlord had not tested them. The survey also recorded that the landlord bagged and removed a broken asbestos panel from the garden in 2017.
The resident explained in his email of 15 December 2021 that both the bedroom ceiling and thermoplastic floor tiles showed signs of damage. He asked the landlord to inspect the property as soon as possible, and before the living room ceiling repair was carried out, to ensure that “all issues can be addressed at the same time”.
The resident also expressed dissatisfaction in his email with how the landlord had dealt with the broken asbestos panel in his garden in 2017. The panel was left in the garden by a contractor who was carrying out work inside the property. The resident said the landlord did not remove all the broken pieces from his garden. He explained that he then came into contact with some of the remaining pieces when working in the garden.
The landlord responded to his email the following day. It said it had passed his concerns on to the repairs team who would be in contact with him. It advised that as asbestos was not detected in the living room ceiling, it did not need to move him into temporary accommodation while it carried out that repair.
In early January 2022 the repairs team confirmed to the resident that it would repair his living room ceiling on 13 January 2022. It duly did so. Meanwhile, the resident told the landlord on 6 January 2022 that the repairs team had also confirmed it would carry out a separate inspection to investigate his concerns about asbestos elsewhere in the property. It did not provide him with a date for this separate inspection.
On 7 January 2022 the resident sent the landlord a copy of a report he had submitted to the local authority’s Environmental Health Department (EHD). He reported that ash had entered his property through an open flue. He said the flue was shared with the flat above and he believed the residents in that flat were using a wood burning stove, contrary to their tenancy agreement. He expressed concern that ash particles were still in his property and were affecting his health due to his lung condition.
The landlord responded to the resident on the same day. It said it had investigated and was satisfied that a wood burning stove was not being used in the upstairs flat.
The resident sent the landlord 5 further emails between 18 January 2022 and 25 February 2022 in which he asked it to confirm when the further inspection of his property would take place. He explained in these emails that he wanted it to assess the bedroom ceiling and tiled floor for asbestos. He also said that he wanted it to inspect the flue through which the ash had entered his property.
Further to this, a housing manager and a maintenance manager carried out a joint inspection of the resident’s property on 29 March 2022. Their contemporaneous notes of the visit recorded the following actions as having been agreed with the resident:
1. the landlord would provide the resident with a £70 decorating voucher as a goodwill gesture following the damage caused to his living room by the leak in September 2021.
2. the landlord would arrange a further inspection of the floor tiles.
3. the landlord would consider whether it was feasible to remove the flue.
4. the resident would cut back the garden and dig carefully in the future. If he found any concerning material he would contact the landlord and ask it to inspect it.
On 10 August 2022 the resident submitted a formal complaint to the landlord. The complaint was detailed and included the following issues:
1. the condition of the property when let in 2010.
2. that the landlord did not inform him when he moved in that there was suspected asbestos in the property. He said the first time it provided him with a copy of an asbestos survey was in December 2021 when it was testing the ceiling. He said that this meant he had carried out work previously, such as removing tape from tiles, unaware that there was a potential asbestos hazard.
3. the landlord’s handling of the incident in 2017 when a contractor left a broken panel containing asbestos in his garden.
4. that there was a “high probability of the presence of further remnants of the asbestos sheeting” remaining in the garden.
5. the landlord’s handling of the ceiling repair following the leak in September 2021. The resident said he was in a “state of panic” following the incident but was given “very limited support” by the landlord. He outlined how its delay in carrying out the asbestos test caused him distress.
6. that he was concerned about the air quality in his property due to ash that had entered it through the flue. He said he had samples of the ash and wanted the landlord to analyse it.
7. that he considered it “essential” the flue was removed.
The landlord issued its stage 1 response on 26 September 2022. It said:
1. it was sorry the property was not up to the standard the resident expected in 2010 when he moved in. However, it was unable to fully investigate this as complaints about issues that were over 12 months old fell outside the scope of its complaints process.
2. the resident should have received a copy of an asbestos survey when he first moved in but. Due to the passage of time, it was unable to verify if it did provide this to him.
3. it was unable to fully investigate the complaint about how it dealt with the asbestos panel in the garden in 2017. Due to the amount of time that had passed, it was unable to interview those involved at the time and it held limited information about the incident.
4. it advised the resident during its visit on 29 March 2022 that if he found any further concerning material in the garden, he should report this. It would then arrange for scientific services to inspect it.
5. it upheld his complaint that it delayed in testing the living room ceiling for asbestos following the leak in September 2021. This was due to an internal “breakdown in communication” between teams.
6. the full repair to the ceiling, completed in January 2022, was also delayed due to a “breakdown in communication” between teams.
7. it was unable to judge whether the ash that entered the property through the flue in September 2021 posed a risk to the resident given a year had passed since the incident. However, it would test the ash samples the resident had taken.
8. it was unable to remove the flue as it was in a structurally stable condition. It could however block-up the flue and install a vent.
On 30 September 2022 the landlord’s asbestos team contacted the resident to arrange testing of the ash. He advised the team that he was not concerned the ash contained asbestos but that it had affected the air quality of his property. The landlord referred the matter to EHD. However, EHD advised it that it did not carry out air quality testing in residential properties.
The resident asked the landlord to escalate his complaint to stage 2 in letters dated 12 October 2022 and 18 October 2022. Within the letters he outlined the distress he suffered when the landlord delayed in testing the ceiling for asbestos. He also asked it to:
1. reconsider its decision not to investigate his complaints about issues dating back to 2010 and 2017. He explained he was unable to raise these issues sooner due to his physical and mental health conditions. He provided medical evidence in support of this.
2. remove all remnants of asbestos sheeting from his garden.
3. test the ash samples and air quality in his property. He outlined his concern that there were still particles of ash in the air and that they were hazardous to his health. He said that as the landlord had not carried out any testing, he was “forced to purchase” air purifiers. He queried how the landlord could be satisfied his property was habitable if it had not tested the air quality.
The landlord issued its stage 2 response on 5 December 2022. It set out in the response a timeline of events and communications with the resident relating to the various complaint issues. It said:
1. it upheld its decision not to investigate the 2010 and 2017 complaint issues. It explained this was in line with the Ombudsman’s guidance which did not require it to investigate complaints about incidents occurring more than 12 months previously.
2. it apologised for its delays in testing the living room ceiling for asbestos and carrying out a full repair following the leak in 2021. It acknowledged the distress this caused the resident, particularly given his health conditions.
3. it offered him £150 compensation to recognise the distress and anxiety the delays caused him. This was in addition to the £70 decorating voucher it had already given him.
4. it was not within its remit to run air quality tests.
5. it was satisfied the property was safe for habitation.
The resident was not satisfied with the landlord’s response to his complaint. He referred it to the Ombudsman in September 2023 and asked us to investigate all the issues he had raised, including those dating back to 2010 and 2017. The main outcome he sought was for the landlord to carry out a “proper investigation” and give his property a “clean bill of health” in relation to asbestos in the garden and ash contamination.

Assessment and findings

Jurisdiction

What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to this Service, the Ombudsman 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, the following complaints are outside the Ombudsman’s jurisdiction:
1. the condition of the property when let in 2010.
2. the landlord’s handling of an asbestos incident in 2017.
Paragraph 42.c of the Scheme says the Ombudsman may not consider complaints which, in our opinion, were not brought to the landlord’s attention as a formal complaint within a reasonable period. A ‘reasonable period’ is normally within 12 months of the issue complained of arising.
The Ombudsman encourages residents to raise complaints with their landlords in a timely manner. This is so that the landlord has a reasonable opportunity to consider the issues when all relevant evidence remains available. As the substantive issues become historical it is increasingly difficult for either the landlord, or an independent body such as the Ombudsman, to conduct an effective review of the actions taken to address those issues.
The resident submitted his complaint to the landlord in August 2022. This was 12 years after he moved into the property in 2010 and 5 years after the asbestos incident in 2017. He explained to the landlord and to us that he could not complain about these issues sooner as he was “suffering physical, mental and emotional stress” for many years without support from health services.
We sympathise with the resident’s situation and understand why he was unable to bring his complaint to the landlord sooner. However, the extent of the delay was such that by the time the complaint was made, the landlord could not thoroughly investigate the complaints. It reasonably explained in its stage 2 response that, “It is more difficult to robustly examine complaints after the 12 month period has elapsed. The reason for this is that records can be destroyed under retention schedules, new databases are procured, staff leave, and legislation, guidance and policy can change.”
We are satisfied with the landlord’s explanation of why it was unable to investigate the complaints that date back to 2010 and 2017. We find that both complaints fall outside our jurisdiction in accordance with paragraph 42.c of the Scheme.
One of the consequences of the 2017 asbestos incident was that by the time the resident made his complaint in 2022, he remained concerned there were asbestos fragments remaining in the garden. This was a current and ongoing concern at the time he made his complaint. We have therefore considered this ongoing concern within our assessment below of ‘the landlord’s response to the resident’s concerns about asbestos’.

Scope of investigation

The resident suggested in his complaint correspondence that the landlord’s actions had negatively impacted on his mental and physical health. In particular, he said that he was exposed to asbestos in his garden in 2017 and that this caused his lung condition.
We have not investigated this as the Ombudsman cannot determine liability for personal injury. We are not qualified to make an assessment as to how the landlord’s actions might have caused a medical condition or resulted in a deterioration of an existing condition. If we identify any failings by a landlord, we may order compensation for the distress or inconvenience caused. However, we do not assess the impact of the failings on a resident’s health. Any such claim would be more appropriately progressed as a claim through the landlord’s liability insurance or as a civil action. If the resident wishes to consider this further, he should seek independent advice.

The landlord’s handling of a ceiling repair

The landlord’s repairs policy states that it will aim to:
1. attend to emergency repairs within 4 hours and make the immediate danger safe.
2. complete urgent repairs within 2 days.
3. complete priority repairs within 10 days.
4. complete standard repairs within 25 days.
The policy also recognises that, “there will be times when the repair priorities need to be adjusted to take account of the specific needs of some [residents] or where extra consideration and support may be needed.”
The ceiling leak in September 2021 would have been classed initially as an emergency repair. In line with its repairs policy the landlord attended to it the same day it was reported. It located the source of the leak and secured the damaged area of ceiling with bags to make it safe pending the full repair.
The previous year the landlord had updated the asbestos survey for the property. The survey recorded that the living room ceiling was presumed to contain asbestos as it was Artex, although the landlord had not tested it.
The Health and Safety Executive recommends that if there are doubts about whether a material is asbestos, it is safest to presume that it is until proven otherwise. On that basis the landlord should have presumed the leak had damaged an asbestos ceiling. It should have urgently arranged for the ceiling to be tested. It should have carried out a risk assessment in which it considered whether it was safe for the resident to remain in the property pending the testing. Ceiling leaks can create dust and debris that may affect respiratory health. It knew the resident had a chronic lung condition. That it did not take any of these immediate actions was a significant health and safety failing.
Instead it took for the resident to send the landlord numerous emails, and the intervention of an elected representative, before the landlord tested the ceiling over 2 months after the incident. Once it had the test results, it took almost 2 weeks, and for the resident to chase it for an update, before it advised him of the outcome of the test.
Once the asbestos test came back negative, it took the landlord over a month before it completed the ceiling repair. Its repairs policy states that surface repairs to ceilings will usually be classed as a standard repair. Such repairs should be completed within 25 days. The landlord failed to meet this timeframe as in total it took 4 months to fully repair the ceiling.
It is evident from the resident’s communications to the landlord that its delays in testing the ceiling and completing the repair caused him significant distress. He sent it numerous emails prior to it completing the work in which he explained the impact of its delay and lack of communication on his mental health.
The resident further articulated the impact in his complaint correspondence. He said he was, “left for three months, not knowing if I should leave the property, not knowing what my rights were, not knowing if I was being or had been further exposed to asbestos in my home, trying desperately to deep-cleanse my home”. We have seen evidence that the resident also told the landlord that he was at risk of harming himself.
In both complaint responses the landlord acknowledged it had delayed in testing the ceiling and completing the full repair. It explained this was due to internal communication issues. In its stage 2 response it recognised the impact this had on the resident. It acknowledged that:
1. it was evident from the resident’s emails at the time of the incident that he “was experiencing anxiety at the state his home had been left in”. This was “unsurprising” given his lung condition.
2. the bags taped to the ceiling with the words ‘asbestos hazard’ printed on them “would be enough to cause concern to a healthy person, let alone one with the condition that [the resident] suffers”.
3. it took for the resident to contact an elected representative before the it carried out the testing and completed the repair.
The landlord appropriately apologised for the above failures in its stage 2 response. It offered the resident £150 compensation in recognition of the delays and distress this caused him. This was in addition to a £70 decorating voucher it had previously given him in recognition of the delays.
It is unknown how the landlord assessed the compensation award. It told us it does not have a compensation policy and it considered all cases on their merits. We have therefore considered the compensation offered against our remedies guidance and find that a higher amount would have been justified. The factors we have considered are:
1. there were multiple failings by the landlord. It failed to prioritise testing of the ceiling. It only considered if it was safe for the resident to remain in the property after it had tested the ceiling and determined it was not asbestos. It delayed in completing the full ceiling repair. It failed to respond to numerous emails from the resident.
2. while the ceiling may have tested negative for asbestos, the resident spent over 2 months believing he had been exposed to it due to the landlord’s failings. This caused him significant distress, which was aggravated by his mental and physical health conditions. The landlord was aware of these conditions.
3. the resident spent time and trouble in repeatedly contacting the landlord and asking it to carry out the testing and complete the repair.
4. the resident spent further time and trouble contacting support organisations, healthcare services and an elected representative to ask for help when the landlord did not respond to him.
In line with our remedies guidance, we find that a compensation award of £600 would be more reasonable than the £150 plus decorating voucher the landlord offered. We are therefore unable to find that the landlord offered the resident reasonable redress to his complaint in its stage 2 response.
Overall, the Ombudsman finds that there was severe maladministration in the landlord’s handling of the ceiling repair. It delayed by over 2 months in testing a damaged ceiling that was presumed to contain asbestos, even though it knew that the resident, who remained living there, had a lung condition. This was a significant health and safety failure. This was compounded by the fact it took a vulnerable resident to persistently contact it and involve an elected representative before it carried out the testing and completed the full repair.
We order the landlord to pay the resident £600 compensation. This is for the distress caused by its failings and for the resident’s time and trouble in having to repeatedly ask it to test the ceiling and complete the repair. The £600 ordered includes the £150 compensation the landlord offered in its stage 2 response.
We recommend that the landlord considers introducing a compensation policy that aligns with the Ombudsman’s remedies guidance.

The landlord’s response to the resident’s concerns about asbestos

Asbestos is identified as a hazard under the Housing Health and Safety Rating System (HHSRS). This requires the landlord to identify if asbestos is present, or likely to be present, in a property. It must however keep accurate records in relation to all locations of the asbestos, or suspected asbestos, and keep its condition under review.
The landlord’s guidance to residents in relation to asbestos states that:
1. when residents sign up for a new tenancy, they will be given a copy of an asbestos information sheet.
2. if there is asbestos in a property that is in good condition and undisturbed, the landlord will generally leave it in place.
3. asbestos is only a problem if it is in poor condition or damaged. Residents should therefore avoid disturbing or damaging it.
The resident complained that the landlord did not inform him when he moved into the property in 2010 that it contained suspected asbestos. The landlord said in its stage 1 response that it was unable to verify this due to the amount of time that had passed. This was reasonable. As we have explained earlier in this report, the Ombudsman does not require landlords to investigate complaints about issues arising more than 12 months previously.
The resident said in his complaint that the first time the landlord provided him with a copy of an asbestos survey was in December 2021 when it was testing the ceiling. The survey was updated by the landlord in December 2020. The survey recorded that the Artex bedroom ceiling and thermoplastic floor tiles in the living room were ‘presumed’ to contain asbestos.
Upon receiving a copy of the survey, the resident emailed the landlord on 15 December 2021 and expressed concern that the bedroom ceiling and thermoplastic tiles were damaged. He had scraped tape from the tiles previously as he was unaware they might potentially contain asbestos. He asked the landlord to inspect the bedroom ceiling and tiles as soon as possible.
The landlord told the resident its repairs team would be in touch with him about these concerns. However, it took the landlord a further 3 months, with the resident sending at least 6 chasing emails during this time, before it carried out an inspection of the property on 29 March 2022.
The landlord committed during the visit on 29 March 2022 to arrange for the tiles to be tested. We do not know the exact date it followed through on this, but at some stage prior to the resident’s complaint in August 2022 it tested the tiles and confirmed they did not contain asbestos. It is unclear from its note of the inspection whether it assessed the bedroom ceiling for damage or considered if it required testing.
The resident’s concerns about asbestos potentially being damaged, particularly the tiles which he had been scraping, were valid in light of the asbestos survey. The landlord should have taken these concerns seriously as soon as the resident raised them on 15 December 2021, particularly given it knew he had a chronic lung condition. He had also by that stage suffered 3 months of distress due to its delay in testing the living room ceiling. It was unfair that the landlord prolonged his distress for at least a further 3 months before it tested the tiles and confirmed they did not contain asbestos. It also either failed to consider his concern about the bedroom ceiling, or did consider this but failed to communicate its findings to him. It did not recognise any of these failures in its complaint responses.
In his email of 15 December 2021, the resident also expressed dissatisfaction with how the landlord had dealt with the broken asbestos panel in his garden in 2017. As with the resident’s concerns about asbestos inside the property, the landlord delayed in addressing his concerns about the garden. It did not discuss the matter with him until its inspection on 29 March 2022.
During the inspection the resident said that he was concerned some fragments of the panel may remain buried in the ground. The housing manager and maintenance manager in attendance could not see any evidence to suggest this was the case. They advised him about how to report any concerns should he find any suspect material in the future. Their notes of the inspection record that he was satisfied with this and agreed to be careful when digging in the garden in the future. This was appropriate, albeit delayed, advice.
Overall, the Ombudsman finds that there was severe maladministration by the landlord in its response to the resident’s concerns about asbestos. We have made this finding on the basis that it delayed by over 3 months in investigating the resident’s valid concerns that asbestos in his property had been damaged or disturbed. This was a significant health and safety failure, aggravated by the fact it knew the resident had a chronic lung condition.
We order the landlord to pay the resident £400 compensation. This is for the distress caused by the severe maladministration and for his time and trouble in having to repeatedly ask it to carry out an inspection.
We also order the landlord to review and update its asbestos survey of the property. As part of this it should satisfy itself there is no asbestos risk in the garden. It should identify if there are any further actions it needs to take and update its governing body if applicable. It should provide a report to the Ombudsman setting out its findings and actions.
The landlord should provide the resident with a copy of the updated asbestos survey. We recommend that it responds promptly to any queries he has about the survey or any further concerns he raises about asbestos. If he is unhappy with its response, he may raise a new complaint.

The landlord’s response to the resident’s concerns about contaminated ash and air quality

The resident explained in his complaint that on 20 September 2021, which was the day after the ceiling leak, there was a storm. He said that during the storm there was a “whoosh” sound and his living room filled with ash from an open flue.
We have seen no evidence that the resident reported this incident to the landlord at the time it occurred. However, he referred to it in an email to healthcare workers on 30 September 2021. He raised concerns about how the dust from the flue was affecting his health, along with potential asbestos exposure due to the ceiling leak. He copied the landlord into this email.
The resident sent the landlord another email on 11 November 2021 in which he said his concerns related to asbestos in the ceiling and also ash. He suggested the ash may have come from a “prohibited solid fuel fire” being used in the flat above. He discussed this concern with the landlord during a phone call in December 2021. It then made enquiries and advised him in an email on 7 January 2022 that the upstairs flat did not have a solid fuel fire.
It was evident from the emails the resident had sent that he was very worried about the impact of the ash incident on his health. That it took the landlord over 3 months to carry out any investigation into the source of the ash was unreasonable.
The resident responded to the landlord’s email of 7 January 2022 on the same day. He suggested that if a fire in the upstairs flat was not the source, the flue must need cleaned. He asked the landlord to call him to discuss this. It has not provided us with call logs so we are unsure if it did so. However, it discussed the flue with him during its inspection of the property on 29 March 2022.
At the inspection the landlord made a commitment to consider if it was possible to remove the flue. It later determined that the flue should not be removed as it was in a structurally stable condition and it was not within its policy to remove redundant flues. This was a reasonable decision. However, it was unreasonable that it did not communicate the decision to the resident until he formally complained 5 months later in August 2022. It told him of its decision in its stage 1 complaint response.
The landlord reasonably suggested in its stage 1 response that it could block-up the flue and install a vent. It also reasonably said in the response that it would test the ash sample the resident had taken following the September 2021 incident.
However, confusion then arose. The landlord appears to have initially understood the resident’s request to be that it tested the ash for asbestos. When the asbestos team contacted him to book an appointment, he said that he did not want the ash tested for asbestos, but wanted the air quality to be tested. The landlord reasonably asked EHD if it would carry out an air quality test. It advised that it did not carry out such tests in residential properties.
For clarity, while the landlord and EHD are both part of the same local authority, our remit enables us to only investigate the local authority’s actions in its capacity as a landlord. If the resident is unhappy with any actions or decisions made by EHD, he can make a separate complaint to that department. If he is unhappy with its complaint responses, he may refer the complaint to the Local Government and Social Care Ombudsman (LGSCO). It is responsible for investigating complaints about local authority environmental health services.
In his escalation request, the resident clarified that he wanted both the ash and the air quality in his property tested. He asked the landlord how, without doing this, it could be satisfied the property was habitable. The landlord said in its stage 2 response that it was not within the local authority’s remit to run air quality tests and it was satisfied the property was fit for habitation.
The landlord’s stage 2 response to the resident’s concerns about the ash was limited. He was evidently very distressed by the thought that the ash had contaminated his home and was affecting his health. He had purchased and was running air purifiers as a result. The landlord could reasonably have:
1. spoken to the resident during its stage 2 investigation to clarify what he wanted it to test the ash for, if not asbestos. It could then have specifically explained in its response why it could not, or would not, test the ash for such substances.
2. explained to him in its stage 2 response why it felt that it, in its role as a landlord, was not required to test the air quality in the property. There would be occasions when the landlord was required to test the air, for example, if hazards under the HHSRS were suspected to be in the air, such as radon, asbestos, or damp and mould. It could have explained to the resident that as it was not concerned such hazards were present, it was not obliged to test air quality.
3. told the resident that he could commission his own testing of the ash and air quality and that it would consider any adverse findings arising from this.
Overall, the Ombudsman finds that there was service failure by the landlord in its response to the resident’s concerns about contaminated ash and air quality. It delayed in investigating whether a solid fuel fire was being used in the upstairs flat and in communicating its decision to the resident about removal of the flue. Its engagement with the resident on the issue was limited and its communications were not as clear as they could have been.
In line with our remedies guidance, we order the landlord to pay the resident £100 compensation for the distress caused by the service failure.
The resident has recently advised us that he remains concerned about the ash and air quality in his property. We cannot compel the landlord to test the ash or air quality in the property, as there is no obligation on it to do so. However, we recommend:
1. if the resident clarifies to the landlord what specifically he wants the ash tested for, it should consider this request and advise him if it can facilitate it. If the resident is unhappy with the landlord’s response, he may raise a new complaint.
2. if the resident provides the landlord with evidence of poor air quality, for example through private testing, it should consider this and respond appropriately. If the resident is unhappy with the landlord’s response, he may raise a new complaint.

The landlord’s complaint handling

The resident submitted his complaint on 10 August 2022. The landlord acknowledged receipt on 16 August 2022. It said it would issue a stage 1 response within 20 working days. This was in keeping with its complaints policy at that time. It has since amended its policy to require that, in line with the Ombudsman’s Complaint Handling Code (the Code), stage 1 responses are issued within 10 working days of its acknowledgement.
As per its acknowledgement letter, the landlord was due to issue its stage 1 response by 14 September 2022. However, it told the resident on 22 September 2022 that it required more time. It issued the stage 1 response on 26 September 2022.
The landlord also delayed in issuing its stage 2 response. It acknowledged the resident’s escalation request on 25 October 2022 and said it would provide its response within 20 working days. This would have been 22 November 2022. However, it did not issue the response until 5 December 2022. It did not advise the resident in advance of this that it required more time.
The Code recognises that sometimes landlords will require more time to investigate and respond to a complaint. However, in such cases, the landlord should notify the resident in advance of the original deadline that more time is required. The landlord failed to do this at both stages. It also did not acknowledge or apologise for the delays in either complaint response. This was a failure to comply with its own complaints policy and the Code.
When the resident referred his complaint to the Ombudsman, he said it was not as “comprehensive” as he would have liked it to be as he received no advocacy support during the complaints process. He suggested that the landlord had ignored his “repeated requests” for “help and support” with making his complaint.
The Code requires landlords to “make it easy for residents to complain”. They should provide different channels through which residents can make a complaint. Landlords must also consider their duties under the Equality Act 2010 and anticipate the needs and reasonable adjustments of residents who may need to access the complaints process. Given this, we have considered the resident’s concern that he was unsupported by the landlord when making his complaint.
When the landlord and resident were corresponding in December 2021 about the ceiling repair, the landlord discussed in an internal email that it was struggling to understand some of his emails. It suggested that he required “some extra support”. However, there is no evidence that it took any further action in this regard, for example, it did not ask him if he had any third party support in place.
The following month, in January 2022, the landlord received further emails from the resident expressing his dissatisfaction with the ceiling repair and raising other concerns. It reasonably told him he could raise these issues as a formal complaint. It directed him to its online complaints form. It did not advise him of other ways to make a complaint, for example, by telephone. It should reasonably have done so, particularly as it had previously identified he may require extra support with written communications.
The resident submitted his complaint via the online form in August 2022. He said, “if this complaint turns out to be incomplete in any regard please remember that I have prepared it myself with very little input or support from any advocacy service”.
In his escalation request in October 2022, which he set out in 2 letters, he said that his health issues were “seriously affecting [his] ability to respond adequately to the [landlord’s] stage 1 response”. He explained he had contacted citizens advice who told him they did not have advisors trained to assist him with his complaint. He said he was awaiting hearing back from a housing campaign group who may be able to provide him with some legal support, although this would be “very limited”. He said it was a “minor miracle” that he was able to reach the second stage of the complaints process as he had been “virtually unaided”. He commented that the landlord had, “made no suggestion as to how it might be possible for someone with my health concerns to properly address the process of pursuing such a complaint against them and I find this both discriminatory and self-serving.”
The landlord did not acknowledge any of these comments in its complaint responses. There is no evidence that it considered at either stage whether it could offer the resident any support with making his complaint. For example, during both complaint investigations it could reasonably have phoned him or arranged a home visit to discuss his complaint, rather than relying solely on his written communications. That it did not do so was a failure to take account of the resident’s vulnerabilities and consider whether reasonable adjustments were necessary.
Overall, the Ombudsman finds that there was maladministration by the landlord in its complaint handling. It delayed in issuing its complaint responses at both stages. It also failed to consider whether it could better support the resident with making his complaint. This was despite the fact he drew its attention at both stages to the fact he was struggling to compose his complaint correspondence due to his health conditions. In line with our remedies guidance, we order the landlord to pay the resident £200 compensation for the distress this caused him.

Determination

In accordance with paragraph 42.c of the Housing Ombudsman Scheme the following complaints are outside the Ombudsman’s jurisdiction:
1. the condition of the property when let in 2010.
2. the landlord’s handling of an asbestos incident in 2017.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was:
1. severe maladministration in the landlord’s handling of a ceiling repair.
2. severe maladministration in the landlord’s response to the resident’s concerns about asbestos.
3. service failure in the landlord’s response to the resident’s concerns about contaminated ash and air quality.
4. maladministration in the landlord’s complaint handling.

Orders

Within 4 weeks of the date of this report, the landlord should:
1. Apologise to the resident for the failures identified in this report. The apology should follow the best practice set out in the Ombudsman’s remedies guidance. It should be made by a senior member of staff.
2. Pay the resident £1,300 compensation broken down as follows:
  1. £600 for distress, time and trouble, due to the severe maladministration in its handling of a ceiling repair.
  2. £400 for distress, time and trouble, due to the severe maladministration in its response to his concerns about asbestos.
  3. £100 for distress caused by the service failure in its response to his concerns about contaminated ash and air quality.
  4. £200 for distress due to the maladministration in its complaint handling.
  5. If the landlord has paid the resident the £150 compensation it offered in its stage 2 response, this may be deducted from the £1,300 ordered.
Within 12 weeks of the date of this report, the landlord should:
1. review and update its asbestos survey of the property. As part of this it should satisfy itself there is no asbestos risk in the garden. It should identify if there are any further actions it needs to take and update its governing body if applicable. It should provide a report to the Ombudsman setting out its findings and actions.
2. provide the resident with a copy of the updated asbestos survey.

Recommendations

We recommend that the landlord considers introducing a compensation policy that aligns with the Ombudsman’s remedies guidance.
Once the landlord has provided the resident with a copy of the updated asbestos survey, we recommend it responds promptly to any queries he has about the survey or any further concerns he raises about asbestos.
If the resident clarifies to the landlord what specifically he wants the ash tested for, we recommend it considers this request and advises him if it can facilitate it.
If the resident provides the landlord with evidence of poor air quality, for example through private testing, we recommend it considers this and responds appropriately.