bpha Limited (202015408)

REPORT

COMPLAINT 202015408

bpha Limited

28 June 2022

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 the landlord’s handling of repairs to an asbestos ceiling following a leak and the level of compensation it offered in relation to the complaint.

Background and summary of events

The resident is tenant of the landlord. The property records confirm that following an asbestos management survey carried out in December 2018, the living room was found to have a textured decorative coating ceiling, containing asbestos type material Chrysotile.
On 2 March 2021, the resident reported a leak from the bathroom, which caused part of the living room ceiling to collapse.
The landlord raised an out of hours emergency repair for its responsive contractor to attend to the leak. In the early hours of the morning of 3 March 2021, the operative agreed at the resident’s request, to attend later that day.
When the contractor attended, they renewed the waste pipe underneath the bath and trap but reported that follow on works were required to renew the copper waste pipe and clear a blockage in the drain. In addition, they reported that the ceiling would need to be repaired but noted that it had a textured finish, commonly found where asbestos is present. On checking the property record, the contractor found that the ceiling had asbestos.
Following this, an emergency order was raised on the same day, for a contractor to attend and encapsulate the ceiling in the lounge.
The resident sent the landlord an email on 3 March 2021 and explained that they were unhappy that they had not been informed of the asbestos presence at the time they reported the leak and ceiling collapse.
On 5 March 2021, they called the landlord for an update on when the follow on repairs to pipework and ceiling would be completed. The landlord’s maintenance team reviewed the contractors report and suggested that the blockage would be the tenants responsibility to address.
The resident called the landlord again on 16 March 2021 and disputed responsibility for the leak. They explained that the operative who attended to the leak on 3 March 2021, informed them that the work to clear the blockage required a specialist and questioned the landlord about how they could be expected to do such work.
The resident contacted this Service and complained that when the contractor attended to the leak, it became apparent that the ceiling had asbestos. However, during this time, they had cleaned up the remnants of the ceiling that had fallen following the leak and therefore, believed they had been exposed to the asbestos. The resident had concerns about the welfare of the members of the household due to this, and said that they wanted the landlord to complete the repairs, investigate why the family were left without a wastepipe, acknowledge any ‘negligence’ in the handling of the repair and provide an apology.
We contacted the landlord on 21 March 2021, to ask that it consider a formal complaint from the resident, if it was not already doing so. It raised a complaint on 23 March 2021. On the same day, it raised the follow on works for the waste pipe renewal and booked this for 6 April 2021.
On 30 March 2021, the parties discussed the complaint. The landlord agreed to provide the resident with an update on the actions it would be taking to address the outstanding repairs and complaint, on 6 April.
When the contractor attended to renew the waste pipes on 6 April 2021, they reported the blockage in the pipework and explained that it was inaccessible. The landlord raised an emergency repair for this and the contractor attended the same day to clear the blockage.
The landlord emailed the resident on 7 April 2021, apologised for the delay in following up with them and explained the reason for the delay. It advised that it was waiting for the report from the visit the day before and agreed to provide the resident with a scope of works for the outstanding repairs, once the report was received. It said that it aimed to complete the remainder of the repairs with as minimal disruption as possible to the resident’s household.
On 8 April 2021, it wrote to the resident and confirmed that the waste pipes had been cleared during the appointment on 6 April 2021. It confirmed the outstanding works required to the lounge ceiling were:
1. A removal of the textured ceiling. It explained that to carry this work out, the room would be sealed off and would inaccessible whilst this work was ongoing. It advised the work would take up to four hours to complete approximately. It advised what protection would be put in place to ensure there was no contamination to the furniture and information of how the waste would be removed.
2. A reinstatement of the ceiling with plasterboard, which would be skimmed afterwards. It confirmed that during this time, the room could be accessed with due care, as works would be going on.
3. Painting of the ceiling. It advised that as a gesture of goodwill, it would paint the ceiling once it was reinstated and skimmed.
The landlord informed that was aiming to have the works to remove and reinstate the ceiling, carried out across two days. It advised that once the plaster had dried around a week later, an appointment for the painting would be booked.
The resident wrote back to the landlord on 11 April 2021. They explained that they had reservations about the impact the repair to the ceiling would impact the members of the household. They specifically noted that they would be restricted from areas within the property for several hours whilst the asbestos ceiling was removed. In addition to this, the resident stated that they did not believe the landlord had addressed their formal complaint, that they stated was logged on 3 March 2021. They informed that they raised following concerns:
1. At the time they reported the ceiling had collapsed, they were not given any warning or guidance in relation to the asbestos ceiling and had cleaned up the debris that had fallen when part of the ceiling collapsed.
2. The plumber who attended to the leak was notified of the asbestos, left the family exposed to the asbestos and left them to clear up, but the resident was not informed about the asbestos.
3. When the asbestos contractor attended to encapsulate the ceiling, they did not seal off the adjoining rooms before working on the ceiling, but covered some furniture around the area worked on, with protective sheeting. They stated that the work created a lot of dust which they were exposed to and the plumber who attended, had also raised concern about this.
4. The leak had been stopped however, the waste pipe blockage was not and wastewater was not draining. As a result, they had to manually remove the water from the shower with a bucket. The smell from the pipe as a result of the stagnant water not flowing through, left an unpleasant smell in the property.
In addition to this, the resident explained that the repair issues were ongoing for several weeks and had caused members of the household stress and concern for their health, due to the potential exposure to asbestos. The resident advised as well as the complaint being addressed, they wanted to be fairly compensated.
The landlord acknowledged the resident’s concerns and confirmed that it would provide a full response by 14 April 2021. It asked the resident whether they had any idea about the compensation they sought to resolve their complaint. In respect of the pending repair to the ceiling, it confirmed the appointment had been booked for the works to take place on 28 and 29 April 2021. It acknowledged the resident’s concern about the impact the works on the household’s and asked the resident whether they had any suggestions as to what it could do to minimise the inconvenience of this.
In addition, the landlord asked the resident to provide details of who they complained to on 3 March 2021, so that it could look into why this was not addressed at the time.
On 14 April 2021, it provided responses to the concerns the resident said they raised on 3 March 2021. It:
1. Acknowledged that the resident cleared the debris themselves but confirmed that it did not advise the resident to do this when they reported the repair. It noted that this would have been addressed by the operative who attended to the report.
2. Confirmed that the operative who first contacted the resident should have informed of the possibility of asbestos being present and, then checked its asbestos record for the property. It acknowledged that this process was not followed and apologised. It confirmed that it had reiterated to its contractor the importance of following this process.
3. Explained that when the emergency repair was raised, its customer service team should have also checked the asbestos record for the property. It apologised that the resident was not informed that an asbestos contractor would be attending to the property.
4. Confirmed that a risk assessment, cleanliness note and consignment note was completed when its asbestos contractor attended.
5. Acknowledged that as a result of its maintenance team advising that the blockage was the resident’s responsibility, the resident was left with blocked pipes until its contractor attended on 6 April 2021, which caused a significant inconvenience.
6. Informed that it could not see complaint correspondence from the resident prior to 21 March 2021, and asked the resident again to provide this.
The landlord apologised for the inconvenience caused to the household and asked that the resident provide suggestions as to how the inconvenience to their household, resulting from the works, could be minimised. It also asked what they considered would be fair compensation. It explained that once it received this information, it would provide its complaint response by 21 April 2021.
The resident responded to the landlord on 19 April 2021 with a copy of the email they had sent to it on 3 March 2021. They asked that it clarify its question about how they wished to be compensated. They said that they had no suggestions in respect of how to minimise the disruption while the works were being carried out. They explained that they felt the landlord had not addressed their point about not receiving any warning or guidance about the asbestos ceiling and the asbestos contractor not sealing off the adjacent rooms. They explained that they felt the landlord had not acknowledged or addressed the failures, health and safety issues and distress that they experienced from being in contact with asbestos had. The resident however, recognised the landlord had reviewed its processes as a result of the complaint.
The landlord responded and asked if it could speak with the resident to discuss the points they had raised. It confirmed that its question about compensation was to find out what the resident wanted as a resolution to the complaint. The resident responded that they wanted communication to be in writing, as opposed to the phone. They explained that they did not feel comfortable requesting a specific figure of compensation but wanted the landlord to consider its policy, the health risks and impact the matter had on the household.
The landlord provided its stage one response to the resident on 27 April 2021, and confirmed that it found that its service delivery had fallen short of expectations in the handling of the repair. It addressed the points the resident raised in their email of 19 April 2021:
1. It acknowledged that the resident wanted it to consider its policy and the impact the matter had on the household when assessing compensation.
2. It confirmed that it appreciated that there were few options to minimise the disruption from the works but advised that it informed the contractors that the removal of the ceiling has to be completed in the morning and completed as soon as possible.
3. It reiterated that it had acknowledged that the operative who attended should have alerted the resident to the potential presence of asbestos and that its customer service team should have also checked the asbestos record for the property and raised a job for the specialist contractor to attend at the time the report was made.
4. It explained that it had spoken with the asbestos contractor, and it confirmed that when removing up to 1 square meter of textured coating, there is no legal requirement for an enclosure or the sealing of rooms. It said that in the case of the resident’s property, less than 1square meter was removed and the contractor acted in line with regulations in place.
5. It explained its repair policy does state that internal blockages are resident’s responsibility but in the case of the resident, the blockage was complex therefore, it carried the works out.
The landlord apologised for its service delivery and the distress caused to the resident’s household. It offered the resident £214.28, which it explained was equivalent to two weeks of rent, in recognition of the impact on the resident and the time they spent pursuing the matter. It also confirmed what action it was taking with its staff and contractors as a result of its investigation findings.
On 3 May 2021, the resident requested an escalation of their complaint. they explained that they felt the complaint had not been fully addressed. They requested a copy of the regulation the landlord relied on to determine how its asbestos contractor dealt with the removal of the ceiling and questioned how it knew the amount that was cut from the damaged ceiling. In addition, the resident was not happy with the level of compensation offered.
The landlord escalated the complaint and asked the resident on 5 May 2021, their availability for a virtual meeting regarding the complaint. It also confirmed its understanding of points the resident raised as part of their stage two escalation request.
On 6 May 2021, the resident wrote to the landlord and explained that following the work to remove and reinstate the ceiling, completed on 29 April 2021, they found that the paint works had not been scheduled and as a result, they had to wait until 27 May 2021 for the painting to be carried out. The resident also advised that they was now looking for the landlord to redecorate the whole lounge. In addition, the resident explained that they had outstanding repairs to a temporary light fitted on 28 April 2021, and a fire alarm.
The landlord raised a new complaint regarding the handling of the repair to the light fitting and fire alarm, and confirmed this to the resident. It referred the resident to its email of 5 May 2021, and requested a date for the virtual meeting to take place. The resident responded to this and explained that they would prefer communication to be via email.
The landlord acknowledged the resident’s second complaint on 11 May 2021. Within this, it apologised for the delay in the completion of the paint work. In response to the resident’s request for the whole room to be decorated, it offered the resident a paint pack or, £70 in vouchers. The resident accepted the vouchers as a resolution to their request for the room to be painted.
The landlord provided its final response to the complaint on 25 May. It confirmed that it reviewed the response at stage one and found it acknowledged the service failures, and identified the actions to be taken to prevent a similar situation recurring. In response to the points the resident made at stage two, it said:
1. To establish the amount of ceiling that had been cut back, it relied on the contractors feedback and photographs taken at the time of the area.
2. It confirmed the source of the information it relied on for the regulation and guidance concerning the removal of asbestos for areas of such size was from by the Health and Safely Executive (HSE).
3. It offered assurances around the potential exposure to asbestos that the resident had raised and details of the guidance given by HSE for the type of asbestos in place at the property. It acknowledged that there was no way to tell what exposure the household had to this but based on the information, it believed that the likelihood that exposure was extremely low to none. It directed the resident to the HSE website for further information and offered to discuss this further if the resident wished to.
The landlord reiterated its apology for its service delivery and the impact this had on the resident, revised its compensation, and offered £500 compensation.
The resident responded to the landlord on 1 June 2021 and said that the complaint was based on health and safety practices that were not followed. They asked for the photographs the landlord reviewed and said that they would take legal advice in respect of the compensation.
The landlord provided the images, and offered the resident another virtual meeting to discuss to discuss their concerns about the health and safety practices. The resident on receipt of the photographs, noted that the area was large and provided their summary of the series of the events relating to the repair.
The landlord acknowledged the resident’s summary of events on 21 June 2021, and explained that while it believed its offer was fair, it would increase the compensation offered to £600. The resident confirmed on 30 June 2021, that they wished to pursue the complaint with this Service.

Assessment and findings

In the complaint, the resident has raised concern about the potential risk to their health as a result of exposure to asbestos materials following the ceiling collapsing. It is important to note from the outset of this investigation that it is not the Ombudsman’s role to decide exactly how works were carried out, or determine if the asbestos was dealt with appropriately and whether there were any health implications to the resident from exposure to the resident. The Ombudsman does not have the expertise to do so, and this would fall more appropriately under the role of the Health and Safety Executive (HSE).
Rather, the role of the Ombudsman is to determine whether the landlord responded appropriately and fairly to the concerns raised by resident about how it dealt with the repair, and the resident’s subsequent formal complaint. Consideration has been given to the general distress and inconvenience which the situation has caused the resident.
The landlord’s repair procedure explains that if an emergency repair is raised out of hours, it will attend within four hours to make safe in the first instance. It identifies emergency repairs as those affecting the safety or basic security of the property, or potentially affecting the health of the household.
Its asbestos procedure sets out that if the property is flagged as having asbestos detected or potential to contain asbestos, it is to advise the resident of the potential presence of asbestos, advise them to leave the room where the damage has occurred and establish the impact of not using the affected room on the household. It should then raise an emergency repair to its contractor and explain that there is potential for damage to asbestos.
Following the residents report of the leak, the landlord failed to follow its asbestos procedure. It has records to confirm that the lounge ceiling had asbestos material however, the resident was not informed of the presence of asbestos at the time the report was made or, given guidance about access to the room where the ceiling had fallen. As well as this, its contractor was also not alerted to the risk prior to its attendance on 3 March 2021.
When the plumber who attended to the leak raised concern about the presence of asbestos during thier visit to the property on 3 March 2021, the landlord promptly sent an asbestos contractor to attend and make the area safe within the same day. At this point the resident was not contacted by the landlord with information about the presence of asbestos or, given any guidance on what to do until the area was made safe despite having been made aware following the plumbers attendance, that the resident had cleaned the debris from the collapsed ceiling themselves.
To respond to the residents complaint about the room not being sealed off whilst the work to encapsulate the ceiling was carried out and the amount of dust present, the landlord raised queried this with its contractor.
The contractor informed that the ceiling was wet, thus limiting the amount of airborne dust present. It confirmed what steps it took when it attended to carry out the work and the process it followed to avoid contamination to other areas. It provided the landlord with the documentation completed during the visit, including photographs of the ceiling, the risk assessment and statement of cleanliness. In addition, the contractor confirmed that there was no requirement to enclose the room, as it removed up to 1m2 of the ceiling. This is confirmed by the guidance published by the Health and Safety Executive (HSE), which provides information on how works to remove asbestos needs to be carried out.
In respect of the amount of dust present whilst the works were carried out, the asbestos contractor, disputed the resident’s account of events and explained that the ceiling was extremely wet therefore, the presence of airborne dust would be extremely minimal. The landlord was not in a position to investigate the comments made by the operative about the dust, as the operative in question no longer worked for the contractor by the time the investigation took place.
The landlord’s investigation into the concerns was appropriate as it relied on its contractors feedback, the documentation the contractor provided and the guidance set out by the HSE, to address the resident’s concerns about how the asbestos removal work was completed and why it was conducted in the way that it was.
Following the plumbers initial visit to the visit to the property for the leak, they confirmed the follow on works required. The landlord received the notification of works on 3 March 2021, the same day the plumber attended. It did not however, raise the order for the works until 23 March 2021, which was three weeks later. This was a delay.
The landlord’s guidance on its website explains that separate to emergency repairs, routine repairs are those that can wait without causing major inconvenience to the resident.
In this case, after the leak had been stopped on 3 March 2021, the pipework remained blocked. As a result of this, the resident experienced issues with wastewater from the shower draining and they had to manually remove the wastewater from the bathroom floor and dispose of this in the toilet. It is reasonable to conclude therefore, that such a repair would be raised and attended to as a matter of urgency.
As a result of the delay in the landlord raising the order for the follow on works, the resident had to chase it on 5 and 16 March 2021, for updates. While the resident was doing so, the landlord was of the view that the clearing of the blockage would be the resident’s responsibility as it understood the blockage was internal.
Blockages to baths, sinks and showers are considered to be the resident’s responsibility and drains are the landlord’s responsibility. However, the landlord has accepted that the type of repair required was complex and it accepted responsibility for this. Because the landlord was not proactive in raising and attending to the repair to clear the blockage, this resulted in the repair being completed 6 April 2021, which was outside of its 28 working day repair timeframe to complete routine repairs.
On receipt of the correspondence from this Service on 21 March, the landlord raised a stage one complaint. It followed through with the actions it initially agreed to take, which was to confirm it’s the actions it would take to complete the repair. It provided a clear outline and description of the works and specifically, explained what the asbestos ceiling removal would involve and the safety measures that would be put in place.
When the resident raised their concern about the disruption the asbestos removal works would have on their household, the landlord was open to working with the resident to find how it could assist with minimising the inconvenience. Although, it was not able to agree a way to minimise the disruption any further than an agreement to complete the work as soon as reasonably possible, its response was appropriate to the concern. It gave the resident clear timeframes of how long the works would be expected to take and provided a clear schedule of all the works required to restore the ceiling.
While corresponding about the complaint during the landlord’s investigation into the stage one complaint, the resident noted that they had raised a complaint on 3 March 2021, with concerns about how the landlord had dealt with the matter of the asbestos ceiling and the repairs overall, and the impact this had. The landlord informed it was not aware of this complaint, and asked the resident to provide the details of the complaint, which they did provide, on 19 April 2021.
In response to the complaint, the landlord confirmed the process that should have been followed to address the asbestos ceiling from when it was reported as having collapsed and it acknowledged that both its customer service team and contractor had failed to follow the process in place for asbestos repairs.
As explained, the landlord’s response to the concerns about how the asbestos removal works were carried was appropriate. When it responded to the complaint, as well as addressing their concerns, it also shared at the resident’s request, the source information it relied on from the HSE about the process for the removal of asbestos. When the resident questioned how it concluded the amount of the ceiling that had been removed on 3 March 2021, it shared with them, the images it reviewed from its contractor to determine this.
The landlord did not address in its response to the complaint, that the resident’s email to it on 3 March 2021 was not responded to. This was not appropriate, the fact that did not respond was a missed opportunity to resolve the resident’s concerns at an earlier opportunity.
In addition to this, the landlord did not address or recognise the contribution its lack of action had on the significant time taken to repair the blockage. Although, it did acknowledge that there was a significant inconvenience to the resident as a result of the repair being outstanding.
As the complaint progressed, the resident raised an issue with the time it took for the landlord to arrange for the ceiling to be painted after the repair to reinstate the ceiling was completed on 29 April 2021. The landlord had informed the resident on 8 April 2021, that around a week after the work was completed, the painting would be booked in. However, the booking of the appointment was prompted by the resident, as the landlord did not schedule the works as it said it would. This was a shortfall. The landlord explained that the availability for appointments for such works were in high demand however, had the works been scheduled in advance of the start of works, it is likely an appointment before 27 May 2021 could have been offered.
In response to the resident’s request for it to redecorate the whole of the living room, the landlord’s made a reasonable offer of redress in the form of vouchers, which would have enabled the resident to paint the room. And the resident accepted this.
From its investigations into the resident’s complaint, the landlord recognised part of the shortfalls that occurred, which was that its asbestos procedure was not followed when the report was made. It provided responses to the resident’s concerns about the way the works were carried out and offered the resident assurances that the when the works were carried out, they were done so according to guidelines.
On finding that there were shortfalls in its delivery of service, it confirmed the correct procedure that should have been followed and the actions it would take to ensuring its staff members and contractors were versed on the procedure to avoid similar situations from recurring.
The landlord also apologised for the distress and inconvenience caused to the resident as a result of the errors made in dealing with the repair to the asbestos ceiling and the distress and inconvenience caused by this.
The landlord’s payment and incentives policy explains that it may offer compensation or goodwill gesture in situations where its own actions or inaction has caused the stress, upset or inconvenience.
The work to make safe the ceiling was completed one day after the report was made, the blockage took five weeks to complete and the remedial works took a total of eight weeks to complete. The landlord accepted that there was service failure in its handling of the asbestos matter and while it did not identify that there was a delay in it raising the follow on works, it acknowledged the inconvenience, distress and time and trouble the resident endured, as a result of it not following the correct procedure when the repair was reported and whilst the repairs to the blockage were outstanding and it offered £600.
The landlord’s payment and incentives policy does not provide guidance on the specific amount of compensation in situations similar to that of the resident’s complaint. However, the Ombudsman’s remedies guidance considers offers in the region of £600 to be appropriate where considerable service failure has been found but there may be no permanent impact on the complainant.
In this case the offer of compensation is considered proportionate to the service failures the resident experienced and the impact this had. The landlord has taken steps to complete the repairs to restore the property to how it was before the leak occured, it responded to the resident’s concerns about how the repair to the ceiling had been dealt with within its responses to the complaint and its offer was made in recognition of the impact service failure had and the distress and inconvenience caused to the resident.

Determination (decision)

In accordance with paragraph 55 of the Housing Ombudsman Scheme, the landlord has offered redress to the complainant prior to investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.

Reasons

The landlord has identified the shortfall in its service delivery and the steps it has taken to ensure that its staff are informed of the correct procedures to avoid a similar situation from occurring.
It has recognised and apologised for the inconvenience the resident experienced whilst the repairs remained outstanding and has made effort to put things right by completing the repairs required. In addition, it has made an offer of compensation to reflect the service failure.
Throughout the complaint it actively sought to address the points the resident raised regarding the way the asbestos works were carried out. It consulted with its asbestos contractor and reviewed its practices against the relevant guidance provided by the HSE, to assure the resident that the contractor completed the works appropriately.

Recommendations

If the landlord has not already done so, it is to arrange for the payment of the £600 compensation offered to be made to the resident within 28 days of this report.
The landlord is to confirm to this Service once the compensation payment has been made or if it has already been made to the resident prior to this investigation.