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Southwark Council (202307700)

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REPORT

COMPLAINT 202307700

Southwark Council

14 May 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 landlord’s response to the resident’s complaint about the presence of asbestos in her property.

Background

  1. The resident has a secure tenancy with the landlord, a local council. She has lived at the property, which is a 1-bedroom flat since 2008.
  2. In 2022, the resident started a disrepair claim against the landlord. She had her own asbestos survey completed on 2 December 2022, which confirmed the presence of asbestos in her property. She contacted the landlord on 18 December 2022 to explain that this was now more serious than a disrepair case. She made it aware that asbestos was present in her property. She explained her concerns that it had never identified or notified her of the presence of asbestos during her tenancy and asked it to investigate this.
  3. The resident complained to the landlord in February 2023. She was unhappy that it had taken no action to investigate her concerns. The landlord completed its own asbestos survey on 3 March 2023, which identified asbestos containing materials, but which required no urgent action.
  4. The landlord provided its stage 1 response on 10 March 2023. It said that the resident was currently engaged in a disrepair claim against it and its disrepair team was dealing with this issue. It explained that she should direct any queries regarding the management of asbestos to the person managing her disrepair claim.
  5. The resident responded on 13 March 2023 explaining that this was not a disrepair claim and that she had no active claim. The landlord subsequently noted she had formally discontinued her claim in July 2023. The resident requested the landlord escalate her complaint, but it did not receive this escalation request until August 2023. She asked that it provides answers to 6 questions and issues, including why it had never identified asbestos at her property during her tenancy.
  6. The landlord provided its stage 2 complaint response on 16 August 2023. It explained that in line with its complaint policy, it had only reviewed events dating back to 12-months prior to the complaint. It said that there were no reports of asbestos until the resident contacted it in December 2022. The landlord provided answers to the questions and points the resident had asked. It explained that the link to escalate her complaint was incorrect, causing a delay it in receiving her escalation. It apologised for this and for not addressing the complaint at stage 1. It offered the resident compensation of £100 for complaint handling failures but did not uphold her complaint regarding asbestos.
  7. The resident remained dissatisfied with the landlord’s response. She asked that we investigate her complaint in November 2023. She said that the landlord had not investigated her complaint regarding why it never told her or identified that asbestos was present in her property.

Assessment and findings

Scope of investigation

  1. As part of her complaint to the Ombudsman the resident has expressed concerns that she has been exposed to asbestos, putting her health at risk. The Ombudsman is unable to assess the cause of, or liability for, impacts on health and wellbeing. This matter would be more appropriately addressed by way of the courts or the landlord’s liability insurer (if it has one) as a personal injury claim. This is a legal process, and the resident may wish to seek legal advice if she wants to pursue this option. This has not been investigated in this report.
  2. The resident has raised concerns about the landlord’s retention of asbestos surveys for the communal area, following her subject access request. This issue has arisen after the landlord’s final complaint response. While this issue may be connected to the matters considered in this report, they relate to a further time period and must be raised as a new formal complaint with the landlord.
  3. Because of that, this issue will not be considered in this report. If the resident’s concerns about this issue remain, she has the option of raising it formally with the landlord as a complaint. If she remains dissatisfied once the landlord has investigated her new complaint, she can then ask the Ombudsman to investigate this.

The landlord’s response to the resident’s complaint about the presence of asbestos in her property.

  1. The landlord’s asbestos awareness policy states that if its operatives discover or suspect asbestos, they should assess the risk before completing any repairs. If they consider that there is a risk they must stop all works, inform the resident, and review the issue. If there is no history of asbestos, the operative will re-attend to complete the repair. If there is still a suspected risk, the job is referred to the landlord’s asbestos team. The landlord would then arrange tests to confirm the presence of asbestos, which if confirmed, it would then arrange a plan of works to make the area safe before repairs are completed.
  2. There is no legal obligation for landlords to maintain a register of properties containing asbestos or to inform residents if asbestos is present in their home. Undamaged asbestos can often be left in situ as it poses minimal risk to health and the presence of asbestos in a domestic property does not alone constitute disrepair. However, if it is damaged or its condition has deteriorated, then the landlord should act to prevent disrepair from arising.
  3. The evidence shows that the resident reported the presence of asbestos to the landlord’s asbestos team on 26 January 2023. It completed an asbestos survey on 3 March 2023, which identified the presence of asbestos containing materials, but which required no urgent work. It provided a copy of this report to the resident and advised her that it would arrange for its asbestos contractor to carry out the recommended work.
  4. It was appropriate for the landlord to complete its own inspection to confirm the presence of asbestos. It was also reasonable for the landlord to provide a copy of this to the resident and to confirm what actions it would take. The evidence shows that the landlord instructed its asbestos contractor on 13 March 2023 to contact the resident to arrange to complete the work identified from its survey.
  5. We have seen no evidence that the contractor contacted the resident as instructed to arrange the works identified. The resident contacted the landlord on 12 August 2023 and said that it could not complete any works until it had responded to her complaint. However, this was 5 months after it had instructed its contractor to complete works. It was a failure that the landlord did not follow up with the contractor to ensure works were arranged before the resident requested it place a hold on all works.
  6. In her stage 2 escalation, the resident requested that the landlord confirm that it had now recorded asbestos in her tenancy file, as well as ensuring it kept her updated with an asbestos management plan put in place for works required. She also asked that it confirm it had organised an asbestos survey for the communal areas and to provide her with the past assessments.
  7. In its stage 2 complaint response, the landlord explained that it had recorded the presence of asbestos in its assessment management records. It explained that the works identified for her property were with its specialist asbestos contractor. It said that once she contacted it to book an appointment, its contractor would advise on the next steps, which may include the plan of works. It recommended that she contact it to progress the outstanding works, so that its contractor could provide an update.
  8. It also explained that it completed a communal asbestos survey in August 2022 and that its communal repair records do not show that it had completed any work in areas where it had identified asbestos. It advised her that she would need to submit a freedom of information request for copies of any communal asbestos surveys. It was appropriate for the landlord to explain how it would record the presence of asbestos at the resident’s home, as well as providing information about the communal areas and how to obtain a copy of its survey.
  9. As the resident had requested it place a hold on completing works, it was reasonable for the landlord to recommend that she contact it to arrange the outstanding works.
  10. The resident complained to the landlord that it had not identified or told her about the presence of asbestos in her property during her tenancy. She provided details of work it had completed in her property since 2009. She expressed her concern that it had completed no risk assessments and that she may have been exposed to asbestos fibres.
  11. The landlord did not address this at stage 1, as it said the resident was currently engaged in a disrepair claim against it, with this issue being part of the claim. The resident had advised the landlord that she did not consider this part of the disrepair case. She had also not started any proceedings against the landlord. Therefore, it was unreasonable that the landlord did not address this at stage 1. It apologised for not addressing this at stage 1 in its final response but said it was appropriate for it to refer any queries to its disrepair team. While it was reasonable for the landlord to apologise, it was inappropriate that it did not identify that not providing a response at stage 1 was a failure.
  12. The landlord responded to this issue in its final complaint response. It explained that in line with its complaint’s policy, it would not normally consider a complaint that was made more than 12 months after the individual first became aware of the issue. It said that it had reviewed the resident’s repair records back to January 2022 and could confirm that there were no reports regarding asbestos until December 2022.
  13. It explained that if any operative suspects the presence of asbestos when attending to repair works, they place their works on hold and report to the specialist asbestos team. It said that no such referrals were made. Therefore, it was satisfied that it had completed no works in the areas which were subsequently identified as requiring attention.
  14. While it is understandable why the landlord restricted its review to 12-months from the date the resident raised the issue, it could have done more. It was clear that the resident’s concerns went back further than January 2022 and she did not become aware of the issue until December 2022. Therefore, she did complain within 12 months of first becoming aware of the issue and the landlord’s policy does not prevent it from reviewing records older than 12 months in this situation. Given the resident’s concerns, it would have been reasonable for the landlord to have reviewed its historic repair records and to provide its findings to her. We have an included an order for the landlord to put right this failure.
  15. Overall, there were failings in the landlord’s response to the resident’s complaint about the presence of asbestos in her home. It failed to follow up with the contractor to ensure works were carried out. It also failed to respond to her concerns at stage 1. It also did not investigate its historic repair records to address the resident’s concerns that it had previously completed works in areas containing asbestos without notifying her or completing an assessment. This caused the resident distress and worry, as well as leaving her complaint unresolved, as it had not investigated the main element of her complaint.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s response to the resident’s complaint about the presence of asbestos in her property.

Orders

  1. Within 4 weeks of this report the landlord is ordered to pay the resident compensation of £400. This is comprised of:
    1. £100 for the amount it offered through its complaint responses.
    2. £300 for in relation to the service failures identified including its response to the resident’s complaint about the presence of asbestos in her property.
  2. Within 8 weeks, the landlord must review its records and advise the resident whether any records confirm that it has completed work in the areas identified as containing asbestos. It must explain its findings and what learnings it can take from its review to the resident. If it identifies that it has not got any records, it should consider whether it has acted in line with its knowledge management policy.
  3. Evidence of this must be provided to the Ombudsman and the resident by the relevant deadline.

Recommendations

  1. It is unclear if the landlord has completed the works identified from its asbestos survey. If it has not yet completed the works identified, it should contact the resident to offer to arrange the outstanding works.