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Brighton and Hove City Council (202400988)

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REPORT

COMPLAINT 202400988

Brighton and Hove City Council

7 November 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

  1. The complaint is about the landlord’s response to the resident’s reports concerning:
    1. Asbestos.
    2. Damp and mould.

Background

  1. The resident is a tenant of the landlord, a local authority. The property is a flat in a block. The resident lives at the property with her 3 children, 2 of whom have disabilities.
  2. In August 2023, the landlord raised a repair to asbestos test lounge floor tiles after contact from the resident, who wanted to put new flooring down. The landlord says that it has no record of reports being made about asbestos or damp and mould in the 12 months prior to this.
  3. In late September 2023, the resident’s MP contacted the landlord about a number of issues. The resident said that she experienced constant mould despite keeping windows open and redecorating. She also said that she had experienced 3 cancelled appointments for cracked tiles in the living room to be tested for asbestos.
  4. On 3 October 2023, the landlord informed the MP that the mould had been raised to its damp team, who would contact the resident to arrange visit. The landlord’s asbestos contractor had also spoken to the resident and arranged an appointment on 9 October.
  5. The same day, the resident complained. She said that she constantly had mould and this had gotten worse, especially in a bedroom, where it was always coming through paint and wallpaper. She said that she had twice experienced failed asbestos appointments where she had not been informed contractors were not coming. She said that she was tired of raising jobs and nothing getting completed. She asked to be moved from the property, or for all repairs to be arranged and confirmed via email. She questioned whether required works could be done while she and her children remained in the property.
  6. On 9 October 2023, the asbestos contractor attended but did not gain access, and the appointment was rescheduled to 18 October 2023. The resident reported that she did not hear anyone at her door, after which the landlord queried if there was anything wrong with the door entry system and offered to raise a job if there was.
  7. On 12 October 2023, the landlord provided a stage 1 response. It restated the MP response that the damp team would contact the resident to arrange a visit. It also said that its asbestos contractor would contact the resident to rearrange the unsuccessful 9 October appointment, after which it would arrange further works as a matter of urgency. It assured the resident that it would monitor the works to avoid any delays.
  8. Following this, the resident raised concern about the length of time works were taking. She provided further information about her circumstances, said she had had to remove carpet because of mould, and again queried whether the landlord could move her. The landlord responded that the repairs did not require the resident to be temporarily relocated while they took place, and detailed how to apply for a move. It noted that the resident reported damage to belongings and advised her to complete and return a claim form for its insurance team to investigate and respond.
  9. On 19 October 2023, the asbestos contractor provided their report after their 18 October visit. They found the asbestos risk to be low, and the tile condition to be 1 from possible ratings between 0 and 3, meaning that they were in a low damage condition with a few scratches, surface marks or broken edges. They recommended for the risk to be managed, a recommendation applicable for asbestos in good condition, and for the tiles to be removed if affected by refurbishment works. The same day, the landlord noted that the report confirmed that the tiles contained asbestos, and noted that follow on works would be raised to remove broken/damaged floor tiles.
  10. On 31 October 2023, the landlord’s damp and mould contractor attended but did not gain access.
  11. In November 2023, the landlord internally chased works for the asbestos tiles. The same month, the landlord noted that the resident was having issues with her phone and not receiving calls and messages, and that it would update her by email.
  12. In January 2024, the landlord’s damp and mould contractor attended. They noted that a radiator was the source of mould in a bedroom, and that works were completed to strip wallpaper and repaint with anti mould paint to protect the walls and pipes.
  13. In February 2024, the resident asked the landlord if there was any update on whether the living room tiles contain asbestos, and said that tiles under hallway carpet were also broken. She said that one of her sons used to sleep in the lounge and this was unusable as all the tiles were all breaking apart. She said when she had reported the issue (around August 2023) she had removed some of the tiles, as they were broken and sharp and posed a danger to her children. She queried if anything could happen to her since she had handled the tiles.
  14. The landlord responded that the tiles contained a least harmful form of asbestos which only made up 1 to 2 percent of a tile, and only posed a risk if broken up and particles were inhaled. It said that the chance of the resident coming to any harm was extremely small. However, it said it had raised a job for them to be removed by a contractor. It said that its contractor would likely remove the hallway tiles at the same time as those in the lounge if the resident mentioned this to the contractor. It said that once tiles were removed it was her responsibility to fit new flooring.
  15. In March and April 2024, the landlord internally chased the contractor about the asbestos tiles removal, after which the resident raised dissatisfaction to the Ombudsman. She had not been contacted by the contractor. She had originally been told that if the tiles contained asbestos they would be urgently removed so that she could re-do the flooring. She was unhappy it took 6 months to find out that the broken and fragile tiles had asbestos, and was concerned she and her family were exposing themselves. She said that mould had reappeared even though a dehumidifier was running constantly and washing was not being dried inside.
  16. In early June 2024, the landlord escalated the complaint after contact from the Ombudsman. In mid June, the landlord contacted the resident to arrange for its contractor to remove the lounge tiles. She responded that she had removed the tiles herself, as the job had taken so long to complete and her children had kept cutting their feet on broken tiles, and there was no need to book in works.
  17. On 12 July 2024, the landlord provided a stage 2 response.
    1. It noted that the resident was unhappy that it had taken too long to remove damaged asbestos tiles and had done this herself. It noted that the asbestos survey deemed the risk to be very low, but it had taken 8 months to contact the resident after the stage 1 had agreed to remove them urgently. It acknowledged that this was a service failure and awarded £250.
    2. It noted that contractors did not gain access for an arranged appointment on 31 October 2023 for the mould, and there was a lack of contact after a card was left. It noted that mould was cleaned in February 2024 after a report, and contractors said no further work was required. It noted that the resident said mould kept coming back, and said that the damp team had been asked to contact the resident to assess the issue and take appropriate action. It noted that the resident said she wanted to be moved during works or permanently, and said that as far as it was known, any works did not require the property to be empty. It said that this would be arranged if this was apparent after the survey but this was unlikely.
  18. The resident raised dissatisfaction with the response. She said that £250 did not cover half of repairing the living room flooring, let alone the hallway and bedrooms that would be next. She disputed the alleged access attempts as she was always home. She said that damp and mould was in every room despite trying to manage it. She said that the mould had not been resolved as there was now a strong damp smell in the hallway. She said that the February 2024 contractors had advised her to stop regularly cleaning the mould to allow the landlord to see how bad it got, but she raised concern about the impact of doing this on the health of her and children. She said that she believed works including replastering of walls and ceilings, removal of all asbestos tiles, and screeding of the flooring was required. She said that numerous carpet and furniture had been lost due to the mould. She also said that no one had attended for the flooring or mould.
  19. In August 2024, the Regulator of Social Housing published a regulatory judgment which found that the landlord was failing to provide an effective and timely repairs service. In responses prior to the regulatory judgment, the landlord has provided information about actions in respect to damp and mould and asbestos.
  20. The landlord recently informs the Ombudsman that at the time of the stage 2 response, a job was issued to a contractor which ceased trading shortly after. It says that it seems that the job was not then reallocated and therefore the resident was not contacted. It says that a new damp repair was raised on 30 September 2024 after an email from the resident, and it arranged an appointment for its own damp team to visit the resident on 16 October 2024. It since says that it did not gain access for this appointment, and it has contacted the resident by phone and email to try to arrange an appointment on 1 November.

Assessment and findings

Scope of the investigation

  1. The resident’s complaint and landlord’s responses refer to additional issues, but the resident has confirmed that the complaint she wishes for us to investigate is about the damp, mould and asbestos issues. The resident has also raised concern about the windows being due for replacement. This was not mentioned in her original complaint and is not considered here in line with paragraph 42.a. of our Scheme, which says we may not consider complaints which, in our opinion “are made prior to having exhausted a member’s complaints procedure.” The resident has the option to raise this and any other issue she is unhappy with to the landlord, and if she remains dissatisfied, has the option to ask it to raise a formal complaint.

The landlord’s response to the resident’s reports concerning asbestos

  1. The resident complained in September 2023 about the landlord’s handling of her request in August 2023 for tiles in the living room to be tested for asbestos. The landlord completed the asbestos test in October 2023, and its July 2024 stage 2 acknowledged that there was an 8 month delay meeting its October 2023 stage 1 commitment to arrange further works such as remove the tiles, for which it awarded £250. This was positive, however aspects of the landlord’s response about asbestos was not satisfactory.
  2. The landlord’s policies are not clear about the timeframe for asbestos tests, but the completion of the test in October 2023 exceeded the 20 working day timeframe for routine repairs. The resident also said when she complained that she had experienced 2 missed appointments for the asbestos test. The landlord does not demonstrate that it considered and addressed the service between August and October 2023.
  3. The landlord’s asbestos policy says that it in response to queries about asbestos, it will provide information, carry out surveys, and possibly remove asbestos containing material. In addition to this, a repairs handbook says that it is vital for permission to be obtained before maintenance work. This confirms that the landlord needed to consider whether the tiles contained asbestos, whether they needed to be removed, and whether the resident could proceed with works or whether she required some advice before doing so.
  4. The landlord does not demonstrate that it did this in an adequate and timely way. The resident experienced a 2 month delay and missed appointments, as noted above. The landlord received the asbestos report in October 2023, but the resident was not told about the results until February 2024, 4 months later, after chasing. The landlord internally noted from October 2023 that the tiles contained asbestos and it would raise works to remove them, but this did not happen. The landlord noted in its stage 2 response that it was not overly concerned by the presence or condition of the tiles and that the recommended action was to remove it if affected by refurbishment works. In the Ombudsman’s view, this lacked sufficient clarity on whether the tiles needed to be removed by the landlord for the type of works that the resident wanted to do.
  5. The resident raised dissatisfaction to us that floor works had not been done, however correspondence from her to the landlord gave the impression that these were no longer needed. If the resident requires further floor works, she has the option to report this to the landlord, however a recommendation is made in respect to this.
  6. The resident said that the living room was unusable due to the issue. We understand the resident was concerned about the room and decided not to use it. However, there is no clear evidence that it was uninhabitable. The report found the asbestos to be low risk, and there is no evidence that the resident raised specific concern about the habitability of the living room in order for the landlord to address this.
  7. Overall, while the landlord acknowledged delays that resulted in the resident removing tiles herself, it does not demonstrate that it considered missed appointments, took steps to improve future service, or identified wider issues with the handling of the resident’s request. This leads the Ombudsman to find service failure in the landlord’s response about asbestos.

The landlord’s response to the resident’s reports concerning damp and mould

  1. The resident complained in September 2023 about damp and mould at the property. The landlord says that it has no record of reports being received in the 12 months prior to this, while the resident says that she deleted any email reports that she may have made. The landlord, on the evidence, therefore seems obligated to act from September 2023, and its contractor attended in October 2023, around the 20 working days of its aimed timescale. The contractor did not gain access until January 2024, when they stripped wallpaper and repainted with anti mould paint in a bedroom. The landlord could have better demonstrated that it attempted to avoid this delay, as it made a stage 1 commitment to monitor works, and it corresponded with the resident by email from November 2023 due to phone issues. However, the resident had an option to rebook the appointment earlier as the contractor left a card.
  2. The resident’s recent reports say that a damp and mould issue is ongoing and is more widespread, however it is not evident that contractors recommended further works after they completed works in a bedroom in January 2024. It is also not evident that the landlord received further reports about damp and mould before June 2024, when it was contacted by the Ombudsman. The landlord’s July 2024 stage 2 response therefore seems to have been reasonable to confirm that it was arranging an inspection, and to say that the resident did not need to be relocated, as these seem proportionate to current information it had about the issue.
  3. The landlord says that the inspection promised in its stage 2 did not go ahead as the contractor ceased trading. This will have been out of its control and will have caused challenges. However, it is not entirely satisfactory that it failed to progress an inspection until contacted by the resident in late September 2024. It is seeking to re-arrange the inspection and put this right, however this will have undermined the resident’s confidence in the landlord. The landlord should ensure it meets its commitments in its complaint responses, and have sufficient processes to ensure that jobs are proactively identified and re-assigned in such circumstances. This leads the Ombudsman to find a service failure in the landlord’s response to the resident’s reports concerning damp and mould.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was:
    1. Service failure in the landlord’s response to the resident’s reports concerning asbestos.
    2. Service failure in the landlord’s response to the resident’s reports concerning damp and mould.

Orders and recommendations

  1. The landlord is ordered to, within 4 weeks, pay the resident £150 compensation. This is in addition to the £250 it previously awarded, which it should pay if it has not already. This comprises £100 for its handling of the asbestos, and £50 for its handling of the damp and mould.
  2. The landlord is ordered to, within 4 weeks, liaise with the resident to rearrange the damp and mould inspection if the existing appointment does not proceed. Following the inspection, it should write to the resident with the outcome, any actions it is taking, and any applicable advice or guidance.
  3. The landlord is recommended to liaise with the resident by email, establish what floor repairs she requires, and raise a job for these if they fall within its repairs responsibility.
  4. The landlord is recommended to review jobs allocated to its contractor before it ceased trading, and to try to ensure that all outstanding ones have been identified, followed up and reassigned.
  5. The landlord is recommended to review how it handles asbestos queries, to ensure responses are timely, consider resident circumstances, and provide relevant advice.