Clarion Housing Association Limited (202405178)

REPORT

COMPLAINT 202405178

Clarion Housing Association Limited

10 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

The complaint is about the landlord’s handling of the resident’s concerns regarding asbestos in the property.
The Ombudsman has also considered the landlord’s complaint handling.

Background

The resident is a tenant of the landlord in a flat in a block. The landlord does not have any recorded vulnerabilities for her.
The resident contacted the landlord on 11 September 2023 and said she had raised an asbestos inspection but had not heard back from the landlord. She said she reported the issue because the company she had paid to replace her flooring raised concerns about asbestos with her. The landlord did an inspection at the property on 10 November 2023. The notes indicate it inspected the ceilings and found they did contain asbestos, but were undamaged, and said the resident was able to redecorate if she wanted.
The resident made a complaint to the landlord on 18 December 2023 about its handling of the asbestos issue. She was unhappy it had inspected the ceilings when she had raised a concern about the flooring. She expressed a concern that her safety was not “being taken seriously”. The landlord completed a further inspection the same day. The notes from the inspection indicate it was not able to inspect all of the floor as there were floor coverings in place.
The landlord instructed a specialist asbestos surveyor to complete an inspection on 16 January 2024. The survey found there was asbestos within the floor tiles, and ceilings. The survey found the floor tiles to be in good condition and described them as “low risk”, and recommended the landlord “monitor and manage” the condition of the tiles. The evidence indicates it was not able to inspect all of the floor tiles due to the floor coverings.
On receipt of the resident’s concerns that some of the floor tiles were broken, the landlord completed a further inspection of the floor in March 2024. The notes indicate it was unable to inspect the areas of concern due to floor coverings being in place, and the resident did not want to remove items from a cupboard.
The landlord sent the resident its stage 1 complaint response on 26 March 2023, and said:
1. It apologised for the delay in sending the response and offered £100 in compensation for its complaint handling.
2. It was first “made aware” of the issue in November 2023, and only carried out an inspection to the ceilings as the floor tiles were not “mentioned”.
3. It did not find any asbestos present at its inspection in November 2023.
4. The asbestos survey of January 2024 did not recommend the floor tiles be removed.
5. It set out it was unable to inspect the flooring in the living room in March 2024, as the resident “refused” the carpet to be lifted. It said it found no evidence of broken floor tiles on the areas it had access to.
6. If it did need to remove floor tiles in the future it could do so safely with the resident in occupation of the property, and she would not need to move temporarily.
The resident was unhappy with landlord’s complaint response and asked her complaint to go to stage 2 of its procedure on 3 April 2024. She said the stage 1 response was “full of inaccuracies” and she had been raising the issue since August 2023. The resident expressed concern that she had been asked to remove floor coverings herself. She said she was unwilling to do so as she was “heavily pregnant” and worried about risking her health by disrupting the asbestos.
The landlord sent its stage 2 complaint response on 23 May 2024, apologised for the delay in responding, and offered £50 in compensation for its complaint handling. It set out the history of the inspections it had completed in relation to the asbestos, and said the stage 1 response was an “accurate” and “fair” response. It said it was the resident’s responsibility to remove any floor coverings she had installed ahead of an inspection as its operatives were not authorised to do so. It restated its position that on the areas of floor it was able to inspect no further action was needed.

Events after the complaints process

The landlord completed a further inspection of the flooring on 30 September 2024, but found it could not see any broken tiles as the resident had reported due to the presence of carpets, and that the cupboard was not cleared. The resident contacted the landlord on 7 October 2024 and said she had removed the carpets in the living room to allow the landlord to remove the floor tiles. She asked for a temporary move while it carried out the works.
The resident contacted this Service on 31 October 2024 and asked us to investigate her complaint. She said she was unhappy with the landlord’s handling of the asbestos issue. The resident raised a concern about the possible impact on her health of living in a property where asbestos was present.
The landlord attempted to complete an inspection of the flooring on 28 November 2024 and reported that it was “unable to inspect without raising the flooring” and the resident “rejected” this. The landlord reported to this Service on 13 January 2025 that it has no current proposals for the removal of materials containing asbestos at the property.

Assessment and findings

Scope of our investigation

Throughout her complaint to the landlord, and when she brought her complaint to this Service, the resident raised a concern that the presence of asbestos in the property had affected her and her son’s physical and mental health. we acknowledge the resident’s concerns and accept that asbestos is a serious issue. It is widely accepted that asbestos can have a negative impact on health. However, this aspect of the resident’s complaint ultimately requires a determination of liability for personal injury.
Claims of personal injury, including damage to health, can be considered via a landlord’s public liability insurance (if it has it), or in a court of law. Such claims will take into consideration medical evidence and allegations of negligence. These matters fall outside of the Ombudsman’s remit. The resident may wish to seek independent advice on making a personal injury claim, if she considers that her, or her son’s, health has been affected by any action or lack thereof by the landlord. The Ombudsman can consider any general distress and/or inconvenience caused by errors by a landlord as well as the landlord’s response to the resident’s concerns about her family’s health.
The landlord issued its final complaint response in May 2024. At the time of its stage 2 response the substantive issues in the case were outstanding. For fairness, this Service has increased the scope of the investigation beyond the final complaint response to fully consider the landlord’s handling of the substantive issues raised.

The landlord’s handling of the resident’s concerns about asbestos in the property

The landlord has a ‘duty to manage’ asbestos, as specified by regulation 4 of the Control of Asbestos Regulations 2012. It requires the landlord to take reasonable steps to: identify, maintain records of, protect residents to exposure from, and execute a management plan for asbestos. There is also a requirement on others to co-operate as far as is necessary to allow the landlord (the duty holder) to comply with the above requirements. The Health and Safety Executive (‘HSE’) warns ‘do not remove asbestos unnecessarily – removing it can be more dangerous than leaving it in place and managing it’.
The landlord’s asbestos management policy states that it is committed to having a robust approach to the identification and management of asbestos. The policy states that it will undertake a “suitable and sufficient” assessment to identify and risk assess the presence of asbestos containing materials (ACMs).
The landlord’s repairs and maintenance policy states that for non-emergency repairs it will inspect within 28 calendar days of the resident reporting the repair.
According to the landlord’s repair records, it was on notice about the resident’s concerns about asbestos from 11 September 2023. It is noted the resident said she first reported the issue in August 2023. However, we have not seen any evidence that indicates the resident reported the issue before her report in September 2023. We have therefore determined that it was on notice from that date. What is clear is that the landlord did not attend to inspect the property until November 2023, which was outside of the timeframes set out in its repairs policy, and this inconvenienced the resident. Considering the serious nature of the reports, it is concerning the landlord did not inspect with more urgency.
When the landlord did attend to inspect the property in November 2023 the evidence indicates it only inspected the ceilings, and the not flooring. This was evidently frustrating for the resident, as she had reported a concern about the floor. This supports the conclusion that the landlord’s information management around the issue was poor as it had not appropriately communicated the issue to its operative who attended. That the landlord promptly attended to re-inspect when made aware it had inspected the wrong area in December 2023. This was appropriate in the circumstances and went some way to putting right the above failing.
The notes from the December 2023 inspection indicate the landlord was unable to inspect where the resident reported the tiles were cracked (carpet grippers nailed into the floor) due to the presence of floor coverings. That the landlord raised a further asbestos survey by an appropriately qualified contractor was reasonable in the circumstances, and evidence it took the resident’s concerns seriously.
The asbestos survey took place in January 2024, and the evidence indicates the inspection did not look at the entire floor due floor coverings being in place. The landlord was aware the floor coverings impacted on its own ability to inspect the floor in December 2023. It was unreasonable that it did not engage with the resident about the issue ahead of the January 2024 inspection. The resident was inconvenienced by an inspection that was not adequately thorough. The landlord’s poor communication about the floor covering issue impacted on its ability to appropriately respond to the matter.
This is of particular concern considering the landlord became aware that the resident was pregnant around this time. She expressed concerns about the risk of asbestos during her pregnancy in an email to the landlord on 5 January 2024. Had the landlord had a more supportive approach to the floor coverings at the time it may have enabled it to complete an appropriately thorough inspection of the flooring.
The landlord’s stage 1 complaint response of 26 March 2024 gave an inaccurate account of the issue. The response claimed it was on notice about the issue from November 2023, and the resident did not mention the flooring. The landlord’s repair records indicate it was on notice from September 2023, and the resident explicitly raised a concern about the flooring. Therefore, the landlord’s suggestion that it had attended within its 28 target timeframe was inaccurate, and the lack of transparency in its response inconvenienced the resident. The frustration she experienced was clear in her stage 2 complaint, of April 2024, where she raised a concern about the “inaccuracies” of the landlord’s stage 1 response.
The landlord used its stage 1 complaint response to set out its position on whether it was prepared to temporarily rehouse the resident. This was appropriate and evidence it gave due consideration to the resident’s request. It is noted the resident was disappointed with its position on the matter. However, the landlord was entitled to rely on the advice of its appropriately qualified operatives who advised the items could be removed safely with her remaining in the property.
The evidence shows the landlord completed a further inspection of the flooring in March 2024. The notes from the inspection state it was unable to inspect the reported crack in the living room tiles, because the resident did not want the carpets lifted, and could not inspect the cupboard because the resident refused to empty it. Again, there is no evidence the landlord took a supportive approach with the resident around the floor coverings. She was inconvenienced by a further inspection that was not appropriately thorough.
When the resident raised her stage 2 complaint she was concerned about the lack of an inspection of the cracks, due to the carpet grippers, she said were present. The facts around the floor covering issue are somewhat disputed. The notes from the landlord’s inspection in December 2023, and indeed its stage 1 complaint response, suggest the resident was unwilling to allow the floor coverings to be moved for the inspection. The resident’s stage 2 complaint email, of April 2024, suggested she had been asked to remove the floor coverings herself. She set out that she was uncomfortable doing so due to being pregnant and a concern about the risks involved with asbestos.
It is not possible to determine whether the landlord had offered to move the floor coverings, or asked the resident to do so, at its visit in December 2023. What is clear is that after the resident raised concerns about doing so herself the landlord’s response was poor.
The resident put the landlord on notice that she was pregnant in January 2024. Under the Equality Act 2010, pregnancy is a protected characteristic. The landlord has a duty to minimise the disadvantages suffered connected to a person’s protected characteristics. The evidence available indicates that the landlord may not have had due regard for the resident’s protected characteristic of pregnancy.
It was unreasonable that the landlord asserted in its stage 2 complaint response that the resident was responsible for removing floor coverings ahead of its inspections. The landlord set out that its operatives were not authorised to remove the floor coverings. The landlord may have fettered its discretion by adopting a blanket approach to the floor coverings. It could have considered asking the resident to sign a waiver to protect itself from any liability for damage and offered assistance with the floor coverings. It was inappropriate that it expected the resident to remove the floor coverings herself when it was aware carpet grippers had been fixed into the floor which it knew contained asbestos. The landlord failed to fully consider the potential risk the situation posed to the resident, including the difficulties with lifting floor coverings when pregnant.
The landlord’s stage 2 complaint response was dismissive of the concerns the resident raised about the issue. It failed to have due regard for the individual circumstances of the resident. She was evidently distressed about the asbestos and the landlord’s request for her to remove the floor coverings herself. The dismissive tone of its response may have increased the distress she experienced.
The landlord’s stage 2 complaint response also asserted it had attended within its target timeframes for repairs. As set out above, this was inaccurate as the records indicate this was not the case. The resident was inconvenienced by the lack of a thorough investigation at stage 2 of the complaints process, as the landlord failed to put right the inaccuracies in its stage 1 response.
The landlord completed another inspection of the flooring in September 2024, and again reported it was not able to fully inspect the floor due to the presence of floor coverings. Again, there is no evidence it had sought to engage with the resident around the floor coverings ahead of its visit. This caused a further inconvenience to the resident, as she experienced the time and trouble of another inspection that was not of the area she was concerned about.
The resident reported she had removed the floor coverings in the living room in October 2024, and asked the landlord to reinspect. The lack of supportive approach would reasonably have contributed to the near year long delay in the living room floor being in an appropriate condition for a thorough inspection.
The landlord sought to inspect the property again on 28 November 2024. The repair records noted a “no access visit”. From the records provided, the outcome is unclear. The landlord told this Service, in January 2025, that it was unable to inspect without raising the flooring, and the resident “rejected” this. The landlord has not supplied evidence to support its claim the resident rejected to remove/ have the floor coverings removed. The lack of available records about this visit amount to a record keeping failing.
The matter of the floor coverings and the landlord’s ability to inspect is disputed. The resident suggested she had removed some floor coverings to allow it to inspect. The landlord has claimed the resident refused to remove the floor coverings, or refused to allow it to do so (its exact position is unclear). From the evidence available it is not possible to determine which claim is accurate. Considering the matter is outstanding, and the individual circumstances of the resident, the landlord must meet with the resident to arrange to remove the floor coverings, and inspect the asbestos below.
Our remedies guidance sets out that for findings of maladministration an order of compensation between £100 and £600 may be appropriate to put things right for the resident. The exact amount of compensation will depend on the individual circumstances of the complaint. The guidance states that findings of maladministration may be made when we identify failures “which adversely affected the resident”. (Depending on the severity of the failing and the impact on the resident.) Considering the failings identified above we have determined an order of £500 in compensation is appropriate to put things right for the resident in this case.

Complaint handling

The landlord operates a 2 stage complaints procedure. The timeframes in its procedure mirror that of our Complaint Handling Code (the Code), which sets out our Service’s expectations of a landlord’s complaint handling practices. The Code states stage 1 complaint responses must be sent within 10 working days, and stage 2 complaint responses sent within 20 working days.
When the resident made her stage 1 complaint in December 2023 she raised a concern that she had tried to raise a complaint earlier, but the landlord had refused. While we acknowledge her comments we have seen no evidence that indicates the resident made a complaint prior to her email of December 2023. It is however noted that the landlord did not open a complaint investigation at that stage and it did not acknowledge her complaint until 8 January 2024. This was outside of the timeframes stipulated by the Code. Although any delay would have caused some level of inconvenience to the resident, overall, the delay was not excessive.
The landlord’s stage 1 complaint response was sent 68 working days after the resident complained. This was an unreasonable delay, and outside of the timeframes set out in its complaint policy and the Code. The resident was inconvenienced by a protracted complaints process. She experienced time and trouble due to the need to raise her complaint again on 5 January 2024, before the landlord acknowledged her complaint. The landlord appropriately apologised and offered redress for the delay. The landlord also showed learning about what it would do to prevent complaint delays in the future. This is evidence it adopted our dispute resolution principle of learning from outcomes.
The landlord’s stage 1 complaint response also addressed the resident’s concern that its operative had refused to raise a complaint, and was “rude”. It set out that it due to the length of time that had passed it no longer had a recording of the call. It appropriately apologised for the resident’s concern about its quality of customer service. It showed learning and set out that it would conduct staff training to improve its customer service. This was reasonable in the circumstances and evidence it took the resident’s concerns seriously, and investigated using the evidence it had available.
The landlord’s stage 2 complaint response was sent 35 working days after the complaint was escalated, which was outside of the timeframes set out in its policy and the Code. The landlord appropriately apologised and offered redress for the delay.
Our remedies guidance sets out that where there have been failings by the landlord an order of compensation between £100 and £600 may be appropriate to put things right for the resident where they have been distressed and/or inconvenienced by the landlord’s errors. We have therefore determined that the landlord’s apology, the learning shown, and the £150 compensation offer were sufficient to put right the errors in its complaint handling for the resident.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s handling of the resident’s concerns about asbestos in the property.
In accordance with 53.b. of the Housing Ombudsman Scheme the landlord made an offer of redress, which in the Ombudsman’s opinion, resolved its handling of the resident’s complaint.

Orders

Within 4 weeks the landlord is ordered to:
1. Apologise to the resident in writing for the failings identified in this report. The apology should be in line with the Ombudsman’s guidance on apologies, available on our website.
2. Pay the resident £500 in compensation in recognition of the distress and inconvenience caused by errors in its handling of her concerns about asbestos.
Within 6 weeks, the landlord is ordered to contact the resident to arrange to lift the floor coverings, with her permission, and inspect the asbestos. It must write to the resident, and this service, outlining the findings of its inspection including timeframes for any proposed works.

Recommendations

It is recommended the landlord pay the resident the £150 in compensation it offered for errors in its complaint handling if it has not already done so. The Ombudsman’s finding of reasonable redress for this issue is based on the understanding that this compensation will be paid.