Waltham Forest Council (202320157)

REPORT

COMPLAINT 202320157

Waltham Forest Council

28 June 2024

Our approach

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

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

The complaint

The complaint is about:
1. the landlord’s handling of the resident’s reports of the presence of asbestos in her property and communication about the matter.
2. the landlord’s complaint handling.

Background and summary of events

The policy and legal context

The landlord has a two stage complaints procedure. From 1 April 2023, at stage 1 the resident should receive a complete response within 10 working days of the landlord receiving the complaint. The time frame for the completion of stage 2 investigations is 20 working days.
According to the Health and Safety Executive (HSE) in the UK, asbestos is not dangerous for the occupants if the building material is in good condition. In summary, if existing asbestos-containing materials (ACM) are in good condition and are not likely to be damaged, they may be left in place, their condition monitored and managed to ensure they are not disturbed.
In addition, under section 9a of the Landlord and Tenant Act 1985, the landlord has an obligation to keep the property fit for habitation in relation to hazards, including asbestos. Under section 4 of the Defective Premises Act 1972, the landlord owes a duty to occupiers to take such care as is reasonable, to see that they are reasonably safe from personal injury due to any defects in the premises.
The landlord’s Asbestos Policy states that it should ensure “a suitable Asbestos Register … is in place that contains information from an appropriate survey carried out by a competent person.” The score from the Material Assessment (i.e. the condition of the material) are added to the score of the Priority Assessment (the likelihood of disturbance), to give an overall Risk Rating:
1. 18 + Points – Category A – High Risk
2. 15 – 17 Points – Category B – Medium Risk
3. 11 – 14 Points – Category C – Low Risk
4. 0 – 10 Points – Category D – Very Low Risk
Low Risk Rating is defined as “material in a condition and/or location that does not give rise to a significant health risk, provided the material remains undisturbed by routine maintenance operations or by personnel carrying out normal daily activities that could cause impact or surface damage to the material. Low Risk is only valid if this provision is maintained. The Dutyholder should be aware of any changes in activities in areas where low risk asbestos material are located. Low risk material will change to High Risk material if it is decided to carry out building works that may cause disturbance of the asbestos material.”
Very Low Risk Rating is defined as “material in a condition and/or location that are a very low health risk, provided the material remains undisturbed either by routine maintenance operations or by personnel carrying out normal daily activities which could cause impact or surface damage to the material. Very Low Risk is only valid if this provision is maintained. The Dutyholder should be aware of any changes in work activities in areas where very low risk asbestos materials are located. Very Low risk asbestos materials will change to High Risk material if it is decided to carry out building works which may cause disturbance of the asbestos material.”
The policy states that if Asbestos Containing Materials (ACM’s) are damaged during works, “For residential properties, the immediate impact on the access to, and the habitability of, the affected dwelling must be reviewed. If either access or habitability are compromised beyond continuing safe usage, then Housing Management Services must be engaged to arrange and manage a temporary decant of the affected residents to emergency accommodation. Subsequently good communication with residents and any other affected parties must be maintained, providing regular updates as necessary, the better to ensure that access prohibitions are not breached.”

Summary of Events

The resident is a secure tenant of the landlord following a mutual exchange on 1 April 2021. Her property is a three-bedroom house. She lives in the property with her adult children.
On 18 April 2019 the landlord carried out an asbestos refurbishment survey of the resident’s property. Its contractor found no asbestos in the textured coatings to the ceilings but:
1. Low risk regarding in a bitumen wrap to an electrical cable.
2. Very low risk regarding a floor tile in the lobby.
3. Very low risk regarding floor tiles in the dining room.
4. Very low risk regarding corrugated cement roofing in the shed.
5. Very low risk regarding cement undercloaking externally.
On 1 March 2021 the landlord carried out an asbestos bulk sample record. The asbestos contractor did not find asbestos in the samples taken.
The resident has stated that when she moved into the property, the former tenant and a member of staff both assured her verbally that there was no asbestos in the property. When decorating her ceiling in 2023, she noted it was in poor condition and decided to commission her own asbestos contractor to carry out testing.
The resident also asked the landlord to send her its asbestos reports. On 1 March 2023 the resident sent it the asbestos report from her contractor, stating in her covering email that it contradicted the landlord’s findings.
On 5 March 2023 the landlord inspected the resident’s property.
On 6 March 2023 the landlord forwarded to the resident comments from a senior manager, who had considered her asbestos report, on the sampling process:
1. “GF Hall Ceiling – Artex ceiling – Artex is a popular type of textured coating used as a great fire retardant, as an insulator and for decorative purposes and is known to be ‘non-homogenous’. Decorative finishing used to be delivered on site in a powdered form and then mixed before being applied. Therefore, the content, amount of asbestos and locations will depend on the mixture resulting in some locations/areas of the same ceiling containing asbestos and others not. When sampled, depending on the sample locations, will come back as positive or negative.”
2. “Usually, it contains between 1% to 4 % of chrysotile (white asbestos) and if kept in a good condition it is safe to remain in situ as the fibres are well bonded.”
3. “GF Kitchen floor – [the landlord’s asbestos contractor] carried out survey in 2019 and the asbestos surveyor recorded “floor screed beneath newly fitted vinyl”. The survey carried out by [the resident’s asbestos contractor] in 2023 noted ‘red tiles with bitumen adhesive residue’”.
4. “It is unknown and therefore inconclusive:
  1. Where the samples were taken from (access to obtain sample and exact location as there was newly fitted vinyl) vs location of damaged flooring and perhaps easier access for [the resident’s asbestos contractor] to obtain sample?
  2. S3 surveyor presumed that was screed below vinyl (this observation was made by the asbestos surveyor on the inspection day and it cannot be explained by WF).”
On 8 May 2023 the resident complained that she had received no correspondence since the inspection regarding the complete eradication of asbestos, further testing or planned abatement works. She noted that the landlord had stated there was minimal risk; however, she believed there should be no risk. She argued that due to the landlord not initially advising her of the presence of asbestos, she had been exposed already.
The landlord responded on 11 May 2023 apologising for the lack of contact. It stated that the asbestos reports had shown a low risk. It stated “I did explain to you that it is not uncommon for properties to have asbestos present particularly in floor tiles and Artex ceiling finishes but as long as this is not disturbed it remains safe. On my inspection I did not note any areas of disturbed asbestos and the areas identified in the reports containing asbestos were in an unchanged condition”. It confirmed actions discussed at the inspection:
1. “To remove the floor tiles in the kitchen/dining area up to the vinyl flooring and create a joint strip.
2. Prepare floor and lay new vinyl.
3. Hallway as … above.
4. Carry out a further asbestos inspection to guide how we deal with the ceilings. The ceiling, depending on the findings, the appropriate remedial action will be taken.
5. This would all be on staged basis so as to avoid too much disturbance to you.”
The landlord further advised that laminate flooring would be lifted and refitted. It stated a stand-alone shed in the garden area did not require action. It re–sent the information previously provided on the asbestos sampling process. It also stated that it would send a separate complaint response.
The resident sent a further email on 17 May 2023 disputing that areas containing asbestos were unchanged. She stated that scraping an Artex ceiling and living in a house with exposed floor tiles was prejudicial to her health. She requested details of how the landlord would safely remove asbestos, protecting her, her furnishings and her belongings. She requested that her possessions be placed in storage and all asbestos was removed. The resident also requested temporary accommodation during the works as she worked from home and her family did shift work.
On 23 May 2023 the landlord sent the stage 1 response to the complaint:
1. It apologised for the length of time taken to progress works.
2. It noted that it had responded to the resident on 11 May 2023 and apologised. In the response it clarified that as long as the asbestos is undisturbed, it remained safe, and it had committed to schedule works.
3. It would monitor the contractors weekly to avoid further delay.
After the resident emailed the landlord asking it to contact her about the works to her property, on 5 June 2024 the landlord advised her that it was meeting its contractor the following day after which it would update her. The landlord did not respond further despite several emails to it and the contractor between 6 June and 11 July 2023.
In the interim, on 27 June 2023, the landlord asked its contractor to quote for the removal of floor tiles from the dining room/lounge and hallway/lobby area. It also asked for a quote to encapsulate the ceilings in the second and third bedrooms as the resident did not want them removed.
After the contractor attended twice and did not get a signature for a waiver, the landlord emailed the resident on 13 July 2023.
1. The first section of works to be carried out would be to remove the floor tiles, under controlled conditions, from the kitchen area and the hallway area. This would require the removal of any floor coverings she had in place. The contractor required a waiver to be signed as it could not accept responsibility for refitting floor coverings or damaging them.
2. When the contractor had completed the works to the flooring it would then be turning its attention to the ceilings in the property, and it would remove any loose or friable material. That would be areas where the paint was liable to peeling, and then seal or encapsulate those same areas. The contractor required a waiver so that the resident would remove belongings before the ceiling works.
In response the resident:
1. requested that the whole downstairs be encapsulated with a screed covering.
2. asked what ceilings the landlord was referring to and what it meant by selling or encapsulating them.
3. stated she had no communication about further testing which had been discussed.
On 8 August 2023 the resident emailed the landlord stating that the contractor did not have areas down on the job list which had been discussed such as the dining room ceiling. She queried whether painting over the ceiling would be sufficient if electrical works needed to take place. She also queried whether the “lino” in the kitchen would be lifted, bitumen or tiles replaced, then replaced. She chased up a response on 28 August 2023 and 3 September 2023.
On 28 August 2023 the resident complained that the landlord had not arranged further discussions or started work. The resident has advised the Service that she did not complain earlier as she was waiting for the landlord to get back to her.
On 7 September 2023 the landlord responded to the resident stating that it would not consider her complaint at stage 2 as she did not escalate the complaint within 28 days. It requested she contact the relevant service to make a service request.
On 15 September 2023 the resident referred her complaint to the Service stating that she had not signed the waiver as the landlord had not provided information and clarification about the scheme of works. She stated that it had incorrectly advised her there was no asbestos in her property. She had removed an Artex ceiling, but her independent survey contradicted the landlord’s advice.
On 10 January 2024 the landlord’s contractor reported that as of that date the resident had refused all appointments and would not allow access until all the works she wanted were booked in. The landlord cancelled the job order.
On 16 April 2024 the landlord raised a new works order. All ceilings in the property would need to be scraped where loose, then sealed and decorated. All ground floor asbestos was to be removed then the landlord would lay laminate supplied by the resident. The resident has advised the Service the works have not been completed.

Assessment and findings

Scope of the Investigation

The resident has stated that at the start of her tenancy the landlord assured her there was no asbestos in her property. While the Service recognises the resident’s concerns, this investigation has primarily focussed on the landlord’s handling of the matters occurring from February 2023 onwards that were raised during the complaints procedure. This accords with paragraph 42(c) of the Housing Ombudsman Scheme of the time which stated, “the Ombudsman may not consider complaints which, in the Ombudsman’s opinion were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising”. Essentially, residents are expected to raise complaints with their landlords in a timely manner so that the landlord has a reasonable opportunity to consider the issues whilst they are still ‘live’, and while the evidence is available to reach an informed conclusion on the events that occurred.
In their submissions to the Ombudsman, the parties have confirmed that the asbestos works in the resident’s property still have not been completed. The landlord has advised that the resident has not accepted the works that have been raised while the resident has said that the landlord has not provided clear details of the works and how they will be completed. She states that the landlord and its contractor has not responded to her further emails and phone calls. In the interest of fairness, the scope of this investigation is limited to the issues raised during the resident’s formal complaint. This is because the landlord needs to be given a fair opportunity to investigate and respond to any reported dissatisfaction with its actions prior to the involvement of this Service. Any new issues that have not been subject to a formal complaint can be addressed directly with the landlord and progressed as a new formal complaint if required. However, the current situation with the works have been noted in order to place the complaint in context and to inform the orders and recommendations on the case.

Assessment

In investigating this complaint, the Ombudsman’s role is not to investigate the level of asbestos, or the risks involved, but rather, it is to provide an independent review of the landlord’s actions in its response to the resident’s concerns. The Ombudsman’s role is to consider whether the landlord’s handling of the resident’s concerns about the asbestos in her home was in accordance with its policies, procedures, and any agreements it has with the resident, and whether it acted reasonably, taking into account what is fair in all the circumstances of the case.
The landlord’s asbestos policy reflects the guidance from the HSE and the law insofar as the presence of asbestos itself does not constitute disrepair. However, if it is damaged or has deteriorated and there is the risk of asbestos dust, then the landlord should act to prevent disrepair arising. In summary, there is no duty on the landlord to remove asbestos unless it had been damaged, or it has deteriorated and presents a health risk to the occupier
The resident was evidently concerned about the risk of asbestos in her home, going so far as to commission her own asbestos survey. Having reported her concerns to the landlord, it inspected her property on 5 March 2024 and sent her its comments on the reports that had been provided. The resident had been decorating therefore under the Asbestos Policy the landlord should have considered whether any ACM’s were damaged, and whether access to and the habitability of the resident’s property was affected. Indeed, the landlord’s asbestos policy recognises that low and very low risk areas can change to high risk due to works. It therefore would have been reasonable for the landlord to, at the very least, have taken photographs as evidence that areas of asbestos were not disturbed from the works that the resident had been carrying out. It could also have confirmed the works the resident had taken and wished to take. This was especially important as the resident believed that the landlord could not rely on the asbestos surveys it had previously carried out due to the outcome of her survey. However, there is no evidence that took photographs.
As noted, the landlord inspected following the resident’s report. Given that the identification and removal of asbestos requires specialist contractors, taken together with the resident stating her decorating works may have disturbed asbestos, it was unreasonable that the landlord did not recommission its asbestos contractor.
Compounding this, there is no contemporaneous record of the landlord’s visit of 5 March 2023. This lack of records is concerning and a serious failing on the part of the landlord. Clear record keeping and management is a core function of a repairs service as this assists the landlord in fulfilling its repair, and health and safety obligations. Accurate and complete records ensure that the landlord has a good understanding of the age and condition of the structure and its fittings within the property, enable outstanding repairs to be monitored and managed, and enable the landlord to provide accurate information to residents.
With regards to the landlord’s communication, both parties confirm that works were discussed at the visit of 5 March 2023. However, the landlord did not confirm to the resident what works would be carried out and within which timeframe. In fact, the landlord did not confirm the outcome of the inspection prior to the resident complaining on 8 May 2023. It therefore delayed in taking steps that may have alleviated the resident’s distress and concerns about the presence of asbestos in her property.
The landlord confirmed the works it had identified on 11 May 2023 and also stated that it would further inspect the ceilings. The resident raised queries about how the landlord would ensure the safety of her family members and her belongings, and how it would accommodate their working patterns. The landlord did not respond to these queries or otherwise manage the resident’s expectations about the works. It did not agree a plan of action for the works, including clarifying the responsibilities of both parties, despite the resident chasing a response several times between June and July 2023. This contributed to further delay in the works as the resident felt unable to sign the waiver presented by the contractor so that works could commence.
The resident raised further concerns about what the works would entail, in particular whether works to encapsulate could be carried out. She raised further queries about the details and scope of both the ceiling and floor works. She also enquired about whether the landlord would be carrying out further testing. Again, there is no evidence that the landlord responded to these queries. Due to the impact of asbestos on health it is understandable that the resident wanted clear and detailed information on the works to be carried out and the process. Having agreed to carry out works the landlord had a responsibility to provide this information in order to provide necessary reassurance and for works to proceed. In line with this, the asbestos policy recognises the need for good communication.
In this case the landlord’s response to the resident’s concerns about asbestos were sporadic with several emails not being answered. This has exacerbated her time and trouble in seeking a resolution. Moreover, the resident raised several queries which the landlord did not even acknowledge. As a result, the landlord has failed to take the necessary steps to manage her expectations and ensure agreement on the works. Consequently, works have been delayed. The resident’s distress and inconvenience has been exacerbated by the nature of the asbestos and the fact that she believes there are areas containing asbestos that have been changed, and the associated risks. The landlord has failed to recognise or address this too.

Complaint handling

The resident submitted a formal complaint on 8 May 2023. The resident was complaining that she had not heard from the landlord about the outcome of the inspection of 5 March 2023. It was therefore appropriate that the landlord gave an update on the substantive issues on 11 May 2023 as well as addressing her complaint about the service provided. The stage 1 response was within the required timeframe for responding.
The Stage 1 complaint response recognised there were outstanding works and committed to monitor the contractor weekly to avoid delay. However, there is no evidence that the landlord took this action or kept the resident updated. Indeed, the landlord’s records indicate that it was over a month later that it asked the contractor to provide a quote. The Service’s Complaint Handling Code in effect at the time recognises that in respect of “Putting Things Right”, “A landlord must carefully manage the expectations of residents and not promise anything that cannot be delivered”. The Code further states that “the remedy must clearly set out what will happen and by when, ... Any remedy proposed must be followed through to completion”. By not resolving the complaint in the way stated in the stage 1 complaint, the landlord did not follow the guidance in the in the Code.
As noted, the resident raised further queries by emails which the landlord did not respond to, before escalating her complaint on 28 August 2023. The landlord did not accept the escalation on the basis that it was out of time. The Code states that “A landlord must not unreasonably refuse to escalate a complaint through all stages of the complaints procedure and must have clear and valid reasons for taking that course of action.”
In this case, the resident was making queries about the substantive issue complained about – the asbestos works – which the landlord had noted in the stage 1 response and committed to monitor. It was therefore unreasonable that the landlord advised her to make a new service request. Moreover, she had again raised communication issues and had allowed time for the landlord to respond to her emails before escalating her complaint. Therefore, the landlord in effect penalised her for being patient by strictly applying its time limit for the escalation of complaints.
In summary, the purpose of the complaints procedure is to put matters right and in doing so the landlord should follow a fair process and learn from outcomes. These are the dispute resolution principles of the Service. By not resolving the complaint in the way set out in the stage 1 response then refusing to escalate the resident’s complaint when she pursued and enquired about the outstanding works, the landlord did not act in accordance with the dispute resolution principles and ultimately failed to resolve the complaint.
The landlord did not follow the complaint handling code in effect at the time when dealing with the resident’s complaint. We therefore order the landlord to consider the findings highlighted in this investigation when reviewing its policies and practices against the current statutory code which came into effect in April 2024.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of its handling of the resident’s reports about the presence of asbestos in her property and communication about the matter.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of its complaint handling.

Reasons

The landlord’s response to the resident’s concerns about asbestos were sporadic with several emails not being answered. This has exacerbated her time and trouble in seeking a resolution. Moreover, the resident raised several queries which the landlord did not even acknowledge. As a result, the landlord has failed to take the necessary steps to manage her expectations and ensure agreement on the works. Consequently, works have been delayed. The resident’s distress and inconvenience has been exacerbated by the nature of the asbestos and the fact that she believes there are areas containing asbestos that have been changed. The landlord has failed to recognise or address this too.
The landlord did not resolve the complaint in the way set out in the stage 1 response then refused to escalate the resident’s complaint when she pursued and enquired about the outstanding works. As such, the landlord did not act in accordance with our dispute resolution principles and ultimately failed to resolve the complaint.

Orders and recommendations

The landlord is ordered to, within the next 4 weeks, to:
1. send a written apology to the resident, taking into account the guidance by the Service on apologies.
2. pay the resident compensation of comprising:
  1. £500 for her distress and inconvenience and time and trouble caused by the failings in its handling of her reports of asbestos and communication about the matter.
  2. £100 for the distress and inconvenience caused by the failings in the handling of her complaint.
3. send a comprehensive response, if necessary, visiting her first, confirming:
  1. what works will be taken in respect of the asbestos in ceiling and the floor, and in which parts of the property.
  2. whether there will be a further inspection and if so by who.
  3. whether it will carry out an air test. If not, why not.
  4. how the works will be carried out to ensure the safety of the resident and her furnishings and belongings. This includes confirming whether the resident will be decanted or not.
  5. whether the resident will need to sign a waiver and if so, why.
  6. what flooring works it will carry out after the asbestos works to the floor.
4. complete the asbestos works or agree a mutually convenient dates for the works.
5. register a formal complaint to investigate its handling of the asbestos in the resident’s property and communication after 7 September 2023, when it closed her complaint. It should contact her to obtain full details of the complaint.
6. to consider the findings highlighted in this investigation in respect of its complaint handling when reviewing its policies and practices against the statutory Code.
In accordance with paragraph 54(g) of the Housing Ombudsman Scheme, within the next 12 weeks the landlord must carry out a review of its practice in relation to its system for managing and responding to reports of asbestos. The review should include as a minimum (but is not limited to):
1. its record-keeping practices and responses to the report.
2. the circumstances when further inspections and testing is carried out, and by who.
3. the circumstances when further works are carried out, and by which contactor.
4. its practices for keeping the resident updated.

if it has not done so already, consider implementing a knowledge and information management strategy, in line with the Ombudsman’s Spotlight Report on Knowledge and Information Management.