Kirklees Metropolitan Borough Council (202306363)

REPORT

COMPLAINT 202306363

Kirklees Council

13 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

This complaint is about the landlord’s:
1. Handling of repairs to the stairs in the resident’s property.
2. Response to reports of damaged asbestos.
3. Response to the resident’s request for reimbursement for damaged belongings.

Background

The resident is a secure tenant of the landlord. The tenancy commenced on 6 November 2017. The property is a 2-bedroom house. The landlord has confirmed that it is aware of the resident’s diabetes and mental health issues.
On 23 February 2023, the resident raised a complaint with the landlord stating that it had ‘shown neglect’ and was ‘again harming (his) health’ and had ‘left him open to asbestos contamination’. The resident said that:
1. An operative had attended his property to repair his stairs and was going to carry out works without knowing that there was ‘active asbestos’ behind the stairs. The resident said that had he not warned the operative about this they would have carried out the works and put him in danger.
2. To improve its appearance, the asbestos-containing panel had been ‘scraped, nails hammered in, and other work carried out’. The resident said that this had been going on for 6 years, the area had not been protected and no warnings had been given to operatives by the landlord.
3. His stairs were still not fixed. The resident said that these were dangerous and that he had already cut his foot on the broken step, for which he had to seek medical advice. He had also sought advice from his doctor as he had recently been short of breath.
4. He was told that everything within the understairs cupboard needed to be thrown away and he would like to be compensated for this. He had been decorating and had put most of his belongings into that cupboard.
5. The operative who came to clean the understairs cupboard had taken the tape off the wall. The resident believed that this tape was in place to stop any loose asbestos escaping.
On 24 February 2023, the landlord confirmed the details of the resident’s complaint with him. The landlord noted that the list of items in the understairs cupboard would be added to the complaint and that a claim form would be sent to him.
The landlord issued its stage 1 response on 28 February 2023. In its response the landlord said:
1. The job to repair his stairs could now go ahead and its property services team had been asked to ensure that this be completed as soon as possible.
2. All its operatives had access to an app which detailed the location of all known asbestos containing materials within its properties. Operatives were required to check the app prior to commencing works.
3. The asbestos insulating board had been repaired by a licenced asbestos removal contractor using Health and Safety Executive approved methods. It had been left in a safe condition which prevented the release of asbestos fibres.
4. A form has been sent to him so that he could submit a claim for the items that were disposed of from his cupboard.
The resident escalated his complaint on 1 March 2023. The resident said that it had been weeks since he reported his stairs being in a ‘dangerous state’ and he had again damaged his foot, for which he required medical assistance. The resident challenged the landlord’s position that all its operatives were aware of the asbestos. He also repeated his position that had he not warned the operative that attended on 22 February 2023 they would have gone ahead with the works. He also said that there had still been no mention of someone replacing the tape, removed after the cleaning operation.
The landlord acknowledged the resident’s escalation request on 3 March 2023 and issued its stage 2 response on 29 March 2023.
In its stage 2 response the landlord apologised for the inconvenience and upset that had resulted in the resident bringing his complaint. It then went on to say that:
1. The repairs to the stairs were completed on the 3 March 2023.
2. Its property services team had confirmed that their operative was aware of the asbestos prior to work starting. The landlord confirmed that the operative had checked the app and followed the agreed asbestos management process. The landlord said that evidence of the times that the operative checked the asbestos app had been provided in its stage 1 response and again in this response.
3. Its licenced asbestos removal contractor would contact the resident as agreed, carry out the relevant survey of his property and provide a full condition report and analysis of any risks. It would also carry out any remedial measures as a result of this inspection.
4. In relation to compensation for the resident’s damaged items, the landlord said that it understood he had been sent a claim form as part of the stage 1 response. However, if he would like to discuss this prior to submitting the form it would be happy to do so. The landlord explained that this would help everyone get a full understanding of the damage caused to the resident’s belongings and the impact this had had on him.
On 31 March 2023, the resident emailed the landlord to say that he had asked for the inventory list on 14 March 2023 but had not received this. The landlord responded the same day apologising for the delay and providing the list of the items that were recorded by the contractor when the understairs cupboard was cleared.

Assessment and findings

The Ombudsman’s role is to assess whether the landlord has followed proper procedure, good practice, and behaved reasonably, taking account of all the circumstances of the case. When considering the landlord’s handling of the matter, the Ombudsman is guided by the landlord’s policies and procedures and our own Dispute Resolution Principles, which are:
1. Be fair – treat people fairly and follow fair process.
2. Put things right.
3. Learn from outcomes.
In his complaint the resident referred to the landlord’s negligence and liability in relation to the asbestos, which he believed had impacted his health, and for damage to his belongings. The Ombudsman is unable to make a finding regarding negligence and liability as such matters are better suited for consideration by a court or via a personal injury claim. Rather, the Ombudsman’s role is to consider the appropriateness and adequacy of the actions taken by the landlord in response to the concerns raised and to make findings based on what is, in the Ombudsman’s opinion, fair in all the circumstances of the case
Following his complaint the resident submitted a public liability claim to the landlord, for personal injury and damage to 4 coats, a rug, a laptop and game console, work shoes and trainers, which was rejected. That the insurer refused the claim is not a matter for this Service to consider.

Handling of repairs to the stairs in the resident’s property.

The landlord is under express and implied obligations in the tenancy agreement and Section 11 of the Landlord and Tenant Act 1985 to complete repairs and to do so within a reasonable time of being given notice of the same.
Once a landlord is informed of some damage or deterioration in a property, it is ‘on notice’ to carry out a reasonable inquiry to determine the cause and complete a repair. What is a reasonable time will depend on all the circumstances of a case.
The landlord’s repairs policy sets out its priority for repairs and the timeframe for its response to each:
1. Instant – where there is an immediate danger to the occupants or there is a risk of further damage to the property or adjoining property, such as flooding, gale damage, gas explosion, house fire or severe vandalism. The timeframe for these types of repairs is up to 4 hours.
2. Emergency – repairs that put the health, safety or security of its customers at risk but there is no immediate danger to the occupants or further serious damage to the property, such as total loss of water, lift not working, loss of gas supply.
3. Responsive – this includes all other repairs which the policy states the landlord will aim to complete within 25 working days.
On 13 February 2023, the resident reported that his stairs were old and needed replacing. The backboard on the stairs had broken and a step had also broken at the end.
The landlord promptly recognised its responsibility to repair the stairs. Given the nature of the report, it was reasonable for it to log the resident’s report as a responsive repair, which it did the same day.
Having done so, the landlord would have been expected to complete the repair within 25 working days, which it did. The repair being completed on 3 March 2023, 13 working days later.
It has been noted that whilst the initial job was raised on 13 February 2023, this was cancelled due to no access. This Service has seen no evidence as to why the appointment was cancelled.
A further job was raised on 20 February 2023 and attended on 22 February 2023. It was at this point concerns were raised about asbestos which meant that the job could not be completed until this had been attended to.
Following the visit on 22 February 2023 a further job was raised on 28 February 2023. The landlord noted at that time that ‘asbestos have gone out and isolated all asbestos’ so a new job needed to be raised as soon as possible for a joiner to attend to make stairs safe. This job was completed on 3 March 2023.
Overall, despite the cancellation due to ‘no access’ and the short delay to the repair being completed due to the asbestos issue, the landlord promptly recognised its responsibility to repair and completed the works within the timeframe set out in its repairs policy. As a result, a finding of no maladministration has been made in respect of this element of the resident’s complaint.

Response to reports of damaged asbestos.

It is not disputed that both the landlord and the resident were aware of the presence of asbestos in the resident’s property, the landlord having carried out works following an Asbestos Refurbishment Survey Report in March 2021 which had identified asbestos insulating board to the wall joining the pantry and understairs cupboard. In its stage 1 response the landlord confirmed that its licenced asbestos removal contractor attended on 25 March 2021 and made the necessary repairs. It also noted that warning labels were applied to the asbestos insulating board and the resident was given a copy of its asbestos insulating board FAQs (frequently asked questions) detailing what he could and could not do with the material.
The presence of asbestos itself does not constitute disrepair. However, if it is damaged or deteriorates and there is the risk of asbestos dust then the landlord should act. Generally, the landlord will require notice before it is obliged to repair the problem.
In this case, the first the landlord was aware of damage to the asbestos insulating board in the understairs cupboard was on 22 February 2023.
There is a dispute with regards to how this was identified. This is because in his complaint the resident said that had he not warned the operative about the asbestos insulating board they would have carried out the works and put him in danger. However, in an email dated 22 February 2023, the surveyor who attended the property, in response to a report from its operative of damaged asbestos, said that the resident had damaged the understairs cupboard partition. The surveyor explained in their email that a small amount of debris was visible within the cupboard. The surveyor said this was caused ‘by small nails’ when the resident was over-boarding and removing skirting board fixed to the asbestos insulating board partition.
It is not possible for this service to determine which of these reports most accurately reflect what occurred in the resident’s property on 22 February 2023. However, what we can consider is what actions the landlord took as a result and whether, having been advised of potential damage or deterioration in the asbestos insulating board, those actions were fair and reasonable given all the circumstances.
Having been advised of the presence of damaged asbestos insulating board, the landlord took immediate action, emailing its licenced asbestos removal contractor the same day requesting that they carry out an environmental clean within the understairs cupboard. The contractor was also asked to keep an inventory of any items disposed of due to asbestos contamination and to encapsulate/patch repair any holes to the asbestos insulating board partition under the stairs.
The licenced asbestos removal contractor attended the following day, 23 February 2023 and cleaned the area. They disposed of all contaminated items as asbestos waste, made the area safe and prepared an inventory of the items they had disposed of.
Despite the conflicting reports, the landlord took the resident’s concerns, that the operative that attended on 22 February 2023 was not aware of the presence of asbestos insulating board under the stairs, seriously and sought to reassure him that that was not the case. This it did by checking the actions of the operative on that day against its ‘tracker’ and confirming in its complaint response that the operative had checked its online asbestos report at 11:09 before leaving the resident’s property at 11:39. It also confirmed that the operative did not complete the works due to the presence of damaged asbestos insulating board.
Further, and having taken reasonable steps to address the damaged asbestos insulating board, the landlord again sought to reassure the resident that there was no risk of further contamination. This it did by contacting its licenced asbestos removal contractor again on the 24 March 2023 to arrange for them to visit the resident’s property. The contractor was asked to assess the current condition and risk, and carry out any remedial measures as required, including replacing the tape as requested. As would be expected, the landlord said it would carry out any remedial measures as a result of this inspection.
In its final response the landlord noted that the resident had advised that he would be unavailable for a period of 3 weeks and so the contractor would arrange access to his property directly with him at his convenience. Given that the landlord had taken reasonable steps to address the damaged asbestos insulating board and as there is no evidence of the resident challenging the landlord’s position regarding his availability, this was a reasonable approach for the landlord to take.
Overall, the Ombudsman considers that the landlord’s handling of this matter was appropriate and reasonable and as such a finding of no maladministration has been made.
This is because the landlord was not obligated or required to completely eradicate all the asbestos containing materials within the resident’s home. The evidence shows that once it was made aware of damage to the asbestos insulating board under the stairs it took prompt action to investigate and ensure that any materials that were deemed to be a risk were removed by appropriately qualified contractors. It also took steps to respond to the resident’s concerns by confirming that its operative had viewed its ‘tracker’ and by arranging for its licenced asbestos removal contractor to carry out a further assessment to ensure that there were no risks that it was not aware of.

Response to the resident’s request for reimbursement for damaged belongings.

It is not within the Ombudsman’s authority or expertise to determine cause, liability or negligence for damage to the resident’s belongings, but it can assess whether the landlord has followed proper procedure, followed good practice, and behaved reasonably, taking account of all the circumstances of the case.
In this case, having been advised by the resident of damage to his belongings for which he held the landlord responsible, it was reasonable for the landlord to provide the resident with a claim form for its public liability insurer’s so that he could pursue a claim.
The landlord also provided the claim form within a reasonable period of time. This is because, having advised the resident on 24 February 2023 that this would be sent to him, this had been done by the time of its stage 1 response on 28 February 2023, 3 working days later.
In addition to sending the resident a claim form the landlord offered the resident, in its final response of 29 March 2023, the opportunity to discuss this prior to submitting his claim. The landlord explained that this would help everyone to get a full understanding of the damage caused to the resident’s property and the impact this had had on him.
It has been noted that there was a relatively short delay in the landlord providing the inventory list, this being requested on 14 March 2023 but not provided by the landlord until this was chased by the resident on 31 March 2023. Given this delay would have been understandably frustrating for the resident, it was appropriate for the landlord to apologise and to then send the list as a matter of urgency, which it did the same day.
Having considered the evidence, this Service is satisfied that there was no maladministration by the landlord in relation to this element of the resident’s complaint. This is because the landlord promptly provided the resident with a claim form, offered the resident the opportunity to discuss this before he submitted his claim, apologised for the relatively short delay in sending the inventory list to him and when this was chased sent the list the same day,

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of repairs to the stairs in the resident’s property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its response to reports of damaged asbestos.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its response to the resident’s request for reimbursement for damaged belongings.