Colchester Borough Council (202127271)

REPORT

COMPLAINT 202127271

Colchester Borough Homes

21 June 2023

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 of damage to their garage including exposed asbestos.

Background

2. The resident and his partner have held a secure tenancy since 2011 for a property owned by the landlord, a local authority. The property is a three-bedroom semi-detached house built in the early 1950s. A garage at the property is included in the tenancy.
3. On 9 March 2022 the resident reported that power tools were being used on asbestos on the roof of the garage block they shared with the next-door neighbour. The landlord’s asbestos team attended the site that day and saw that the garage had been demolished and asbestos sheets with cut sides were left in the neighbour’s garden. The resident was advised by the landlord not to enter the garage and an asbestos contractor visited the site the same day.
4. The inspection found no contamination, the garage end was sealed so no dust had entered, a satisfactory air test was conducted and no further work was required.  The resident logged a complaint the following week as he said that he had been advised not to use the garage and it was full of their possessions. They were waiting for a temporary garage. There was asbestos lying in the garden next door and they had been unable to reach the housing officer. A building control surveyor visited the next day and said the building was not unsafe.
5. The landlord’s stage one response said that it was not necessary to store the resident’s possessions elsewhere as the structure was safe and not contaminated. The developers had been told to follow relevant health and safety reporting procedures and to safely remove the asbestos from the neighbouring garden.
6. On 14 March 2022, the resident repeated their concerns about the structure, damage to their possessions and said the asbestos remained in the garden. The asbestos was removed by the developer on 17 March 2022 and the landlord’s final response said that the developer was responsible for the repairs to the garage they damaged, and the landlord had been negotiating contracts for this. The developers had provided a temporary shed and all the resident’s possessions had been environmentally cleaned.
7. The resident wants the garage to be removed and rebuilt and to be paid compensation.

Assessment and findings

Assessment

8. The resident’s tenancy agreement says the landlord will ‘keep the structure of your home in good repair’.
9. The landlord’s building safety compliance policy says at section 2.2 that the landlord will only use consultants who hold relevant accreditation for testing and inspecting – and contractors licensed with the Health and Safety Executive (HSE) . Page 23 of the policy provides a flow chart for the asbestos removal process from asbestos being identified, up to disposal.
10. The landlord’s repairs handbook, available online, says at page 6 that an emergency is something which could cause danger to someone’s health or safety or cause serious damage and destruction to property. Emergency repairs will be carried out within 24 hours. Page 11 says the landlord ‘must keep the structure and exterior of your home and the building in which it is situated in good repair’. Page 14 says that an urgent repair is one that seriously affects your comfort or convenience i.e., partial loss of power light or water supply, and will be responded to within three days. Routine repairs are ones that can wait a short time and include non-urgent internal and external repairs.
11. Page 55 of the policy covers asbestos and says ‘asbestos is a mineral that was used as a building material because it is rigid and fire resistant. It can still be found in corrugated roofing panels or walls of garages/sheds’.  There is a guidance box telling resident’s not to drill, saw or sand asbestos, and always to consult the landlord and seek professional advice.
12. In this instance, the resident reported the damage to the garage roof at 10.30 AM and were immediately transferred to the asbestos team who also spoke with the developer’s contractors during the same phone call. The asbestos team were not content with the information given by the contractors and attended the property at approximately 12.30PM. They instructed the resident not to enter the garage until advised following environmental cleaning or an inspection had taken place. A specialist asbestos contractor attended the following morning at 8.00AM when no contamination was identified. The garage end was found to be sealed so no dust had entered, and no further work was required. A ‘satisfactory air test’  was also conducted and a certificate issued to the landlord.
13. The resident complained on 9 March 2022 that the garage was unsafe and they had been advised not to use it, and although they had been informed they would be given temporary storage for their belongings, they had heard nothing more. They said that the asbestos was still in the neighbour’s garden and if the garage fell down, the landlord was liable.
14. The landlord asked its building control surveyor (BCS) to attend which he did the next day. The BCS considered that there was no immediate danger of collapse but did complete a HSE ‘report of a dangerous occurrence’ certificate regarding the asbestos roof being cut and removed.
15. The complaint response on 14 March 2022 explained the action the landlord had taken and that there was not considered to be any danger from the garage structure. It also said there was no risk to the resident’s possessions, and it would not be necessary to inconvenience the residents by storing their items elsewhere. The resident escalated the complaint the same day and said that the asbestos was still in the neighbour’s garden. The landlord asked for it to be urgently removed, which took place the following day.
16. In its final response on 5 April 2022, the landlord said there was no danger from the garage or its contents, although it had arranged for the garage and contents to be environmentally cleaned. The developers had loaned the residents a shed for storage while the landlord negotiated a legal agreement for rebuilding the resident’s garage. It said that compensation for the resident’s belongings would then be arranged.
17. The landlord log showed the resident made a further call  on 17 May 2022 saying the garage was condemned and a major health and safety issue. The landlord responded the same day and reassured the resident that the garage had never been condemned and that the councils’ legal department were liaising with the developer regarding the rebuild of the garage.
18. The landlord acted quickly and appropriately when informed of the damage to the garage. The landlord arranged for the garage and contents to be environmentally cleaned as it had potentially  been contaminated, but there is no suggestion that this was required due to health and safety concerns. The tests for asbestos inside the resident’s garage had also been negative.
19. The developer supplied alternative storage for the resident’s belongings, which would be required once the existing garage was removed and replaced. However, there is no evidence to suggest that this was required due to the structural condition of the garage.
20. It is not clear why the resident believed the garage was condemned.  The situation was explained in the first stage response dated 14 March 2022. The Ombudsman appreciates the resident’s concern about asbestos at the adjoining property. However, any misunderstanding after this date could not reasonably be said to be the fault of the landlord who had made the situation clear.
21. Once the landlord was informed that the cut sheets of asbestos roofing material were still in the neighbour’s garden, it acted quickly to demand that it be removed. The neighbouring property was privately owned and the developer had used private approved inspectors relating to building control. The landlord had no further obligation to manage the development.
22. Any initial service failure in respect to the asbestos on the garage roof here was not by the landlord, but it did everything it was obliged to do to protect the health and safety of the resident’s family. Any compensation would be a matter for the developers.  It has not been shown that the landlord is responsible for any inconvenience caused due to the resident’s items being decanted into the temporary shed, as it had said it was not necessary to remove the items from the garage.
23. The landlord has provided professional assessments of both the structure of the garage, and any potential danger from the asbestos and it has found no concerns. The Ombudsman is satisfied that the landlord has engaged expert personnel who have made the findings and we have no basis for making a contrary finding.
24. There has been no evidence submitted to support that the landlord did not act properly and within its obligations in relation to the damage to the resident’s garage.

Determination

25. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of the landlord’s handling of the damage to the resident’s garage.