East Riding of Yorkshire Council (202114618)

REPORT

COMPLAINT 202114618

East Riding of Yorkshire Council

26 May 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

The complaint is about the landlord’s:
1. response to the resident’s concerns about asbestos and the landlord’s management of asbestos.
2. response to the resident’s reports of a leaking and defective waste pipe.
3. complaint handling.

Background and summary of events

Background

The resident is a secure tenant of a local authority. The resident has several vulnerabilities. They include attention deficit hyperactivity disorder (ADHD) and cancer. The landlord has said that there are no known vulnerabilities recorded.
The property is a one bedroom first floor flat, located within a three-storey block of flats.
The resident benefits from the use of a brick-built outhouse shed of 1960’s construction, which is remote from the property. The outhouse shed is located within a larger block of sheds, whose roofs are constructed from an asbestos containing material.
The soil pipe is made of cast iron. This pipe runs internally through the building and is interconnected tothe soil pipes of nearby flats.
The tenancy agreement sets out the rights and repair obligations of the resident and the landlord. The tenancy agreement does not expressly state that a shed is included with the property, however it does state that the “landlord is responsible for “repairing and maintaining:
1. the structure and exterior of the property. This includes garages, outhouses and external stores erected by us
2. the installations for the supply of water, gas, electricity, for sanitation and for space and water heating provided by the council for the benefit of the property. This includes basins, baths, WCs, waste pipes and showers”.
The tenancy agreement places other obligations on the resident and the landlord:
1. the resident “must not remove any textured wall or ceiling coverings, outbuilding and/or their roofs as they may contain asbestos, which must only be dealt with by authorised persons”
2. if the landlord needs to carry out work to the property, “we will give you reasonable notice and the reason (unless it is an emergency, as determined by the director of environment and neighbourhood services, when immediate entry to the property will be made). If you refuse permission or we are unable to gain access we can apply to the court for permission to gain access and carry out the works”.
The Health and Safety Executive (HSE), says that “as long as asbestos is in good condition and is not disturbed or damaged there is negligible risk. However, if it is disturbed or damaged, it can become a danger to health, because fibres are released into the air and people may breathe them in”. The HSE advises not to remove asbestos unnecessarily “as this can be more dangerous than leaving it in place and managing it”.
The Control of Asbestos Regulations 2012 creates an explicit duty on the landlord to manage asbestos in non-domestic properties. This includes buildings such as outhouses.

Relevant policies and procedures

The landlord has a two stage formal complaints process. The target timescale for responses are 10 working days at stage one and 10 working days at stage two. The policy states that “if a customer is not happy with the response to their complaint at stage one, they have 30 days in which they can ask for their complaint to be considered by the relevant director. The customer will be asked to explain why they are dissatisfied with the outcome of the investigation at the earlier stage”.
The landlord’s repairs policy outlines the response times for different types of repairs. It aims to attend to ‘category a’ repairs within 24 hours, ‘category b’ repairs within 3 working days, ‘category c’ repairs within 14 working days, and ‘category d’ repairs within 56 working days.
The tenant information and repair handbook raises awareness of asbestos containing materials within the landlord’s properties. It states that “due to the age and build type of some properties, materials containing asbestos may be present in various locations. It is important to remember that if asbestos is left undisturbed and in good condition it does not present a risk. You must avoid conducting any activity that could damage or disturb the fabric of your property. Should any accidental damage occur to an area of your property containing asbestos it is important that you report this immediately”.
The landlord has an asbestos policy which provides information on the landlord’s legal duty to manage asbestos in accordance with regulations. It applies to all the landlord’s premises, including “outhouses”. The policy states that “asbestos in good condition will be left in place and will be monitored by competent trained officers who undertake specified management condition monitoring”. “Where damaged asbestos containing materials are identified, the affected areas are isolated, access to the affected areas is denied, and the asbestos removed and / or replaced with non-asbestos alternatives as part of a rolling programme of improvement and refurbishment”.

Summary of Events

This investigation focuses on the resident’s concerns about asbestos, and a leaking and defective waste pipe, raised between 7 May 2021 and the date of the landlord’s final stage two response on 3 November 2021. To place the resident’s complaint in its current context, this report includes references to actions taken by the landlord, that took place after 3 November 2021. The report also references an asbestos survey dated July 2019, as this information is relevant to the investigation.
The landlord carried out a full asbestos survey of the property on 26 July 2019. The survey found asbestos within the textured coatings of the bathroom and lounge ceilings. The survey stated there was a “low asbestos risk”, “with little risk of exposure to occupants unless materials were disturbed”.
The resident contacted the landlord four times between 17 May 2021 and 3 August 2021, about a “rotten” vertical cast iron foul pipe.
The resident contacted the landlord on 27 July 2021. He said, “the flats need tearing down due to asbestos in the bathroom panels and poor upkeep by the [landlord]”. He asked, “what are the roof panels made of in the out-sheds” “because they look like asbestos panels, and if so they should have been removed decades ago”. He asked for “confirmation what they are. Best, I will be doing my own checks as I don’t trust [the landlord] due to their past records of maintenance and not giving a dam about tenant safety and welfare”.
The landlord first engaged in communications with the resident about asbestos and a neighbour’s waste pipe on 29 July 2021 and 30 July 2021. These communications included:
1. the landlord said that it was looking at its asbestos records about the shed. However, it would instruct a survey if these were incomplete or needed updating. It later advised that it had instructed an asbestos survey on the roofs and blocks of sheds
2. the resident repeated that he was getting his own survey and would report the landlord to the authorities. The landlord asked the resident not to take samples himself, as this may put himself and others at risk. It had ordered a professional survey and would keep the resident updated
3. the resident expressed concern that the landlord was putting people’s health at risk and suggested that it should stop people from using the sheds. He felt that the landlord was asking him “to do the wrong thing” by asking him not to take samples and wondered if the landlord had something to hide. He later stated that he had taken his own samples for testing
4. the resident said that he had asked the landlord twice if his shed roof was made of asbestos. He said that he “already knew about the bath panel”
5. the resident stated that his neighbour’s bathroom had been covered by waste and suggested this was due to rotten foul pipes. The landlord asked the resident to ask his neighbour to make contact as it had not received any reports about an escape of waste
The landlord tested the shed roof for asbestos on 3 August 2021. The survey found asbestos containing materials, namely an asbestos called crocidolite chrysotile. The condition of the roof was observed to have “low damage”, meaning the surveyor had noted the presence of a few scratches or surfaces marks, broken edges on boards, or tiles. Its material risk (the potential to release asbestos fibres should the asbestos be disturbed), was recorded as “low”. The recommendation given was to “manage” the asbestos.
The resident contacted the landlord several times on the 3 August 2021 and 5 August 2021 about asbestos in the sheds. He suggested that residents should be restricted from using them. He expressed dissatisfaction with the scope of the asbestos survey carried out on 3 August 2021, which he was present at, as this focused solely on external parts of the roof.
The landlord acknowledged the resident’s dissatisfaction on 5 August 2021, about the scope of the 3 August 2021 survey. It told the resident that it had arranged further asbestos testing inside the shed, specifically on the underside of the shed roof. It also said that it would arrange a CCTV drain inspection in response to concerns by the resident. This would include a survey of the soil pipes.
The resident raised a stage one complaint on the 17 August 2021. He did not specify what remedies he was seeking. In consideration of complaint elements included in this investigation, the resident said:
1. the foul pipes were rotten and the flats were leaking. Whilst the landlord knew about this, it had done nothing. When he first moved into the property, the landlord knew that he was “emptying a tub full of human waste everyday” but did nothing
2. the landlord had known about asbestos in the resident’s bathroom and out-shed, but had done nothing. He believed that the landlord did not want him to arrange his own asbestos test on the shed roof, because the landlord was “trying to cover it up”
3. he had made several complaints via phone and email but had no proof that his complaints been logged as a formal complaint
4. the council were putting resident’s health and mental health at risk. He said that he had ADHD.
A second asbestos survey was carried out on the external and underside of the shed roof on 24 August 2021. The resident contacted the landlord on 24 August 2021, expressing satisfaction that this survey had been carried out. He believed that asbestos would be found in dust samples from his shed. He said that some dust had dropped from the roof when he tapped it and had fallen onto the specialist who was taking samples.
The landlord received the findings from the second asbestos survey in a report on 24 August 2021. The survey report indicated crocidolite chrysotile (a type of asbestos) on the underside of the shed roof. Its condition was recorded as “low damage”, and there was a “low material risk”. The report recommended that the landlord “manage” the asbestos. The walls and floor were also tested, however no asbestos containing material was identified.
The landlord contacted the resident on 23 September 2021, and provided him with a summary of the results from the first and second asbestos surveys dated 3 August 2021 and 24 August 2021 respectively. Although it did not provide a full copy of the records, it said that the roofs were in “good condition”, as was the underside of the shed roof. It advised that no further action was required. It said that it had looked at its asbestos records in relation to the flat itself. The only asbestos recorded was within the textured coatings on the ceilings. It said that these were in “good condition” and didn’t require further action.
The resident wrote to the landlord several times between 23 September 2021 and 28 September 2021. In these communications, the resident indicated that:
1. he disagreed with the landlord’s interpretation of the asbestos surveys. His understanding was that the shed roof should be replaced. He believed that the landlord had fabricated a story about the asbestos roof panels being in good order and said that he would see the landlord in court
2. he said that he wanted the “sheet” removed from behind the bath, as he believed this contained asbestos
3. he also supplied the landlord photographs of what looked to be a piece of asbestos on the floor outside the shed, and a video of him or someone with access to the shed, hitting the underside of the shed roof. It was not clear what the roof was being hit with.
On 29 September 2021, the landlord ordered a third asbestos test, “to make sure no damage had occurred to the shed roofs since the last survey”. It also sought to examine the internal side of the roof again following the resident’s video. It specifically asked its contractor to analyse any white flecks within the shed, which had reportedly fallen from the underside of the roof.
The resident requested a copy of the landlord’s 2019 asbestos survey on 29 September 2021, showing the locations of asbestos previously identified within the property. The landlord provided this to the resident the following day.
The landlord spoke to the resident on 8 October 2021. This service has not seen copies of contemporaneous notes from this conversation. However, the landlord’s refreshed understanding of the resident’s complaint was mentioned in its stage one response, which was delivered later that day. In its stage one response, the landlord:
1. apologised for the delay in its response and acknowledged that there were still several issues and repairs outstanding. The complaint handler would oversee these to ensure that all issues were resolved to the resident’s satisfaction
2. noted that the resident had spoken of his concerns about the escalation of his complaint to stage two. It said that it was in contact with the Ombudsman and wanted to find a resolution for all parties
3. clarified its new understanding of the matters the resident considered to be outstanding. These included leaks, the pipes and concerns about asbestos in the property. It offered to arrange for a property manager to inspect the whole property, if the resident wished
4. noted that the resident was concerned about asbestos checks that had been carried out by the landlord. Acknowledged that the resident had arranged an independent asbestos survey, for which he was requesting reimbursement. The landlord said that it would consider his request
5. advised that it was arranging a further asbestos survey, which would include the bath panel. It was waiting for a date for this. Following the outcome of the survey, it would determine appropriate steps and carry out any further work that may be necessary
6. had arranged for a closed circuit television (CCTV) survey of the internal soil vent pipe, which was scheduled for 18 October 2021.
7. stressed that it did want to resolve the matter and wanted to work with him to address the issues and concerns raised. It promised to provide a further update to his complaint by 20 October 2021.
The landlord raised another works order on 9 October 2021, to carry out asbestos testing on the bath panel and pipe boxing within the property. The resident denied access to the asbestos contractor on 15 October 2021. It is not clear whether the resident was given prior notice of the appointment.
The resident contacted the landlord several times on 15 October 2021, asking for additional concerns to be added to his complaint. The landlord treated this as a request to escalate the resident’s complaint to stage two of the landlord’s internal complaints process. The resident said:
1. he had asked for copies of the landlord’s asbestos survey several times, but he had been ignored. He questioned whether the landlord had something to hide
2. he was concerned that appointments had been booked without telling him
3. he was alarmed that the asbestos contractor had turned up to carry out a full inspection of the flat, when he was expecting an inspection of his shed and bath panel only. Whilst the landlord had told him that it was arranging an asbestos survey, he wasn’t given any dates
4. he wanted a call back because a full flat inspection hadn’t taken place, as he was told.
A CCTV survey was carried out on 18 October 2021, which made several observations:
1. the structural condition of the soil vent pipes & drainage was generally in a good condition. No major structural faults were found
2. there were some protruding pan connectors and waste pipes that might require attention in the future. The camera was prevented from surveying all the way down the pipe, by one connector in particular
3. the 75mm soil vent waste pipes serving the kitchen, bath & sink showed some heavy scale & food deposits and recommended these be descaled
4. the 100mm soil vent pipes serving the toilet were in good condition and showed no signs of any scale build up or defects.
The landlord provided its stage two and final response on 3 November 2021. In consideration of the landlord’s responses which are particularly relevant to this investigation, the landlord:
1. said it had been trying to liaise and work with the resident to carry out relevant asbestos surveys and determine necessary works. His reluctance to provide access for surveys had delayed works being carried out.
2. reminded the resident of his obligations to provide access under his tenancy agreement and suggested that further action could be taken if access was not provided. However, it noted that the resident had now agreed to provide access for asbestos surveys on the bath panel and shed roof. The landlord’s contractor would contact him to arrange an appointment
3. suggested that it had photographs, showing that he may have damaged surfaces within the outhouse that may contain asbestos. It reminded him of his obligation under his tenancy agreement not to “remove any textured wall or ceiling coverings, outbuildings and/or their roofs as they may contain asbestos – which must only be dealt with by authorised persons.”
4. said it recognised his personal circumstances and wanted to work with him to address any outstanding repairs, but reminded him that this could only be achieved with his co-operation
5. said permission had been granted for the landlord’s surveys to be sent to the resident. It apologised if these had not been sent before and attached them with the landlord’s response
6. noted that the resident had been offensive and abusive towards staff. It reminded him of his obligations around expected behaviours, as set out in the tenancy agreement

Actions to note subsequent to the completion of the landlord’s internal complaint process

A third asbestos survey was completed on 24 November 2021, in the presence of a landlord representative. The survey found:
1. samples from the shed roof detected the presence of crocidolite chrysotile. It was observed to have ‘low damage’. Its material risk was assessed as “low”, and the recommendation was to “manage” the asbestos
2. dust samples from inside the shed detected the presence of crocidolite chrysotile. The material risk was assessed as “medium”, meaning that there may be high damage or delamination of materials, sprays and thermal insulation or visual asbestos debris. The recommendation was removal
3. samples from debris on the floor outside of the shed, was found to contain crocidolite chrysotile. The material risk was assessed as “medium”, and the recommendation was “removal” of the debris
4. samples from the bath panel detected no asbestos containing material.
It is unclear when the landlord received the findings from the asbestos survey. However, a copy of this survey was sent to the resident on 8 December 2021.
The resident told the landlord on 9 December 2021, that the foul pipe needed replacing because it was” rotten”, and he had instructed his own survey to prove this.
The landlord instructed its contractor on 9 December 2021, to remove asbestos debris from outside of the shed, to clean the inside of the shed, and to paint the underside of the shed roof with a sealant.
The landlord’s records between 16 December 2021 and 20 December 2021, show that there was confusion between the landlord and its contractor about who had arranged access to carry out the works ordered on 9 December 2021. The resident initially refused access as he wasn’t given prior notice, for which its contractor apologised. The contractor offered the resident another appointment for 20 December 2021, however the resident refused this appointment on the basis that not all the sheds were being looked at.
The resident chased the landlord on 8 February 2022 for an update.
The landlord’s records from 14 February 2020, state that “due to recent events at [the location] involving the police, I was advised to cancel all outstanding job tickets at the [the resident’s address] until further notice. I have since spoken to housing this morning, as the tenant is chasing outstanding work raised previous”. The landlord reinstructed works the same day, which including removing asbestos debris from the path, cleaning the shed, and sealing the shed roof. It asked its contractor to arrange an appointment with the resident.
The resident reported a strong smell coming from the back of the toilet and foul pipe three times between 15 February 2022 and 18 February 2022. The landlord’s contractor attended twice but found no smell or leaks.
The landlord’s records between 15 February 2022 and 21 February 2022, reflect that its contractor attempted to arrange access to remove the asbestos debris from the path, clean the shed, and paint the underside of the shed roof with a sealant. An appointment was booked for 21 February 2022, however the resident cancelled this appointment with the landlord in order to take legal advice.
The landlord’s contractor removed the asbestos debris from the path on 21 February 2022. The resident refused to provide access to his shed. Its contractor was unaware that the resident had cancelled this work. Whilst the resident agreed to provide access on 22 February 2022, the resident did not provide access on this date.
The resident mentioned the rotten foul pipe again to the landlord on 24 February 2022 and 2 March 2022. The landlord said that it would “pass on”his concerns regarding the foul pipe.
The resident tried to raise a new complaint with the landlord about the foul pipe on 5 May 2022. The landlord responded to the resident on 6 May 2022:
1. it said that it had already responded about the soil vent pipes and found no issues with the condition of the existing pipes. It said that it had also responded to reports regarding the soil vent pipe within the property, again no issues were found.
2. it recapped on the findings and action that it had taken in response to his concerns about asbestos in his shed. It said that its policy was to manage all asbestos within its properties and would always remove asbestos when that was required. It stressed that it was prepared to carry out this work, however the resident had not provided access. The landlord repeated this information on 6 April 2023.
The landlord inspected the property on 18 January 2023 following new reports of a leak, although no leaking or defective waste pipe was found.

Assessment and findings

Response to the resident’s concerns about asbestos and the landlord’s management of asbestos

It is recognised that the resident was concerned about the presence of asbestos within his property and outhouse shed. The landlord responded appropriately when the resident first raised concerns about his shed roof, by consulting its asbestos records and advising that it would instruct an asbestos survey if its records were incomplete or needed updating. However, the landlord could have managed the resident’s concerns better, by explaining that as long as asbestos was in good condition and not disturbed or damaged, there was negligible risk.
It was appropriate that the landlord advised the resident not to take his own samples from the roof. This action may otherwise have resulted in asbestos fibres being released, putting the resident and others at significant risk. Whilst the resident may have felt that the landlord was “asking him to do the wrong thing” in not taking his own samples, the landlord was observing best practice. It was also responding in line with the asbestos guidance given in the tenant information and repair handbook. The resident’s tenancy agreement also prohibited the resident from removing “any textured wall or ceiling coverings, outbuildings and/or their roofs as they may contain asbestos – which must only be dealt with by authorised persons”.
This service notes that the resident went onto raise concerns about the possibility of asbestos in his bath panel. The landlord had access to, what it describes as a “full asbestos survey” for the property dated 26 July 2019. This survey did not report any asbestos in the bath panel. The landlord was therefore able to, and should have offered, reassurance to the resident about the construction of the bath panel when concerns were first raised. However, the landlord failed to adequately manage the resident’s concerns, creating unnecessary worry for the resident.
The landlord’s records show that an asbestos survey was undertaken on 3 August 2021, which detected the presence of asbestos containing materials in samples taken from the external side of the roof. When the resident later expressed dissatisfaction with the scope of the original testing, the landlord addressed the resident’s further concerns, by arranging a second test that included internal parts of the shed. This was reasonable response and demonstrated the landlord’s commitment to resolving the resident’s complaint.
The resident raised a stage one complaint on 17 August 2021, where he complained that the landlord knew about asbestos in his bathroom and outhouse shed but had done nothing about it. Whilst the landlord was evidently responding to asbestos related concerns about the shed, the landlord had missed opportunities to give reassurance and advice to the resident about his bath panel. This would have been frustrating for the resident, who by this point had mentioned the bath panel several times without acknowledgement.
The landlord was entitled to rely on its contractor’s expert advice and recommendation from the second asbestos survey, but once those findings had been received, it had a responsibility to advise the resident of the outcome of the survey in a timely manner. This was not communicated to the resident until one month later. This delay was excessive in view of the resident’s apparent anxieties.
Based on the survey findings, it was reasonable for the landlord to conclude that no immediate action was required. However, it may have given greater reassurance to the resident had it provided copies of the fully asbestos survey reports, and had it explained its duty to monitor the condition of the shed roof from thereon, and how this would be achieved.
The landlord’s policy on managing asbestos states that “where asbestos remains in good condition, it will be left in-site and will be subject to specified management condition monitoring which will be undertaken by training officers”. Whilst the resident may have preferred the shed roof to have been replaced to eliminate the risk of asbestos entirely, the landlord was under no obligation to take any further remedial action at that time, save for monitoring. This is also consistent with advice from the HSE who states that removing asbestos unnecessarily “can be more dangerous than leaving it in place and managing it”.
The landlord arranged a third asbestos survey on 29 September 2021. This followed receipt of photographs from the resident of some debris on the communal pathway outside the shed, and a video showing the underside of the shed roof being hit. The landlord told this service, that it arranged the additional survey to make sure that no damage had occurred to the shed roof since the previous survey. It specifically asked its contractor to analyse any white flecks found within the shed, which had reportedly fallen from the underside of the roof.
This service questions the necessity of a third survey. The landlord had video evidence of the resident or someone who had access to the shed, hitting the underside of the asbestos roof and dislodging dust and materials. It was reasonable for it to assume that the integrity of the asbestos roof had been compromised. It was also reasonable for it to assume that debris outside the shed had come from the roof, which again it knew was made of an asbestos containing material.
The landlord has a duty to manage asbestos in non-domestic premises, in accordance with regulation 4 of the Control of Asbestos Regulations 2012. This duty extends to outhouses. If asbestos becomes damaged or deteriorates and there is the risk of asbestos dust, then the duty holder should act to prevent disrepair from arising and to minimise associated health risks. Therefore, on receiving the video and photographs, the landlord should have taken immediate steps to secure the shed and undertake works to make it safe. It should also have removed the debris from the communal pathway in a timelier matter, regardless of any testing that it may have arranged.
It is understood that there was a delay in completing the third asbestos survey as a result of the resident refusing access, however the resident claims that appointments were being booked without telling him. This service makes a general observation about appointment scheduling throughout the complaint, which was a recurring theme. There appeared to be a lack of oversight around appointment scheduling generally, with confusion largely caused by contractors being left to make appointments with residents. This was inappropriate as it led to delays completing inspections and works. Further, it would have caused frustration and disturbance to the resident.
The third asbestos survey was completed on 24 November 2021. The survey found no asbestos within the bath panel. Findings from samples taken from the exterior of the shed roof were consistent with past surveys. However, dust samples taken from inside the shed and on the debris outside of the shed were found to contain asbestos, which required “removal”. As previous tests had not detected the presence of asbestos within samples taken from the walls and floor, it would have been reasonable for the landlord to conclude that the striking of the roof had caused the release of asbestos fibres.
Mindful that the landlord had not already taken steps to make the asbestos in the shed and debris safe on receiving the resident’s video and photos, it was important that once the presence of asbestos was confirmed by the survey, that the landlord took robust and decisive action to manage the identified risks.
Based on the findings from the third asbestos survey, its decision to place a works order to remove the debris from the pathway outside the shed, seal the underside of the roof, and remove asbestos dust within the shed by way of a specialist clean, was reasonable. However, it was unreasonable that the asbestos debris was left outside the shed and was not removed for over ten weeks from the point the job was raised. There is no evidence to suggest that the landlord cordoned off the area as an interim measure to make it safe. This is a significant failing considering that asbestos debris was left in an open space.
There is no evidence that the landlord instructed the resident to stop using his shed until such time as the roof was sealed and the shed cleaned. This is inconsistent with the landlord’s policy on managing asbestos, which states that “where damaged asbestos containing materials are identified, the affected areas are isolated, access to the affected areas is denied, and the asbestos removed and / or replaced with non-asbestos alternatives as part of a rolling programme of improvement and refurbishment”.
It is noted that the specialist asbestos clean and roof sealing works remain outstanding. This service notes that the landlord placed works on hold following police advice, however the landlord still had a duty to consider the risks in line with its legal duties. Whilst the resident may have refused access unreasonably at times, further hindering completion of these works, this service has not seen evidence to suggest that the landlord attempted to prohibit entry to the shed when access became an issue. This meant that the resident continued to be at risk from asbestos fibres.
Considering the length of time that has now passed, it would have been reasonable for the landlord to have taken some decisive action to bring this matter to a conclusion and enable it to fulfil its obligations around the management of asbestos. The fact that this has not happened, shows a lack of oversight concerning the landlord’s duties around asbestos. Whilst the landlord has offered to carry out these outstanding works on at least three further occasions since 22 February 2022. It is inappropriate that the landlord did not rely on its contractual relationship with the resident and follow through on its previous warnings of tenancy enforcement, to ensure completion of the works.
It was inappropriate that the landlord did not consider ways to support the resident with his understanding of the risks about asbestos. It is clear that he was extremely anxious about asbestos within the home and in his shed. The evidence suggests that the landlord focused on providing the resident with technical responses, which were ineffectual in managing the resident’s concerns. Delays in providing the resident with copies of asbestos surveys, created mistrust and a perception that the landlord was hiding something. When the surveys were provided, the resident did not have the technical knowledge to interpret them, which created more confusion for the resident.
Notwithstanding the resident’s diagnosis of ADHD, which the landlord had been made aware of in the resident’s stage one complaint, the landlord should have recognised the resident’s obvious anxieties and difficulties vocalising his concerns, which were repeatedly evident throughout his communications with the landlord. The landlord missed several opportunities to address the resident’s concerns in a more holistic way. Involving tenancy sustainment officers or a third-party mediation service could have supported the resident in his understanding of the risks associated with asbestos. This might also have helped the resident more effectively vocalise his concerns, and bring about earlier dispute resolution.
Overall, the landlord did not manage the resident’s concerns about asbestos effectively. At the point it became aware that the shed roof had sustained damage, it did not manage the asbestos in accordance with its policies. This placed the resident and others at significant risk from exposure to asbestos fibres and materials. Cumulatively these failings constitute maladministration.

The landlord’s response to the resident’s reports of a leaking and defective waste pipe

It is recognised that historic issues with blockages in the resident’s waste pipes, which caused the property to flood, must have been very distressing for the resident at the time. It is understandable that the resident would wish to seek reassurance from the landlord, if he had new concerns about the condition of his waste pipes.
The landlord is obliged under its tenancy agreement, to repair and maintain “the installations for the supply of water, gas, electricity, for sanitation and for space and water heating provided by the landlord for the benefit of the property”. This includes “basins, baths, toilets, waste pipes and showers”.
The resident’s frustration with the landlord is understandable when it failed to offer a timely response to his renewed concerns about the waste pipe. The resident contacted the landlord, suggesting that the vertical cast iron foul pipe had “rotted” and should be replaced. It was unreasonable that the landlord did not recognise the resident’s concerns for 11 weeks. This indicates an issue with the landlord’s record keeping, or that the landlord had not fully understood the resident’s concerns.
The landlord’s stage one response explained that the CCTV survey had been booked for 18 October 2021. This was a reasonable course of action considering the resident had reported the waste pipe to be “rotten”. However, it took well over the 56 day target for the landlord to address the resident’s concerns. It may have been reasonable for the landlord to have inspected the pipe before arranging the CCTV survey. It was unreasonable that it delayed in arranging this survey in view of the resident’s concerns.
The resident has continued to complain about the condition of internal soil vent and drainage pipes, despite its CCTV survey showing no major structural faults. It is noted that the landlord’s contractor was unable to survey the entire of the waste pipe with its camera, due to a protruding pan connector. The landlord has told this service that it had inspected the property on 18 January 2023 following new reports of a leak from the resident, although no leaking or defective waste pipe was found.
Overall, the landlord delayed in investigating the resident’s concerns about leaking and defective waste pipes, which was inappropriate. It attempted to resolve the resident’s concerns by arranging a CCTV survey to investigate the condition of the pipes. However, the timescale for completing this survey was excessive and beyond the response timescales set out in the landlord’s repairs policy. Whilst the survey found the waste pipe to be in reasonable condition, it is not clear if the tenant was made aware of the findings from the CCTV survey or the recommendations arising. As such the landlord failed to effectively manage the resident’s concerns about the waste pipe, and the resident has continued to raise concerns, causing him distress, time, and trouble. Accordingly, in respect of the landlord’s response to the resident’s reports of a leaking and defective waste pipe, this service finds service failure.

Complaint handling

Whilst the landlord did not have any vulnerabilities recorded for the resident, the resident clearly told the landlord that he had ADHD in his stage one complaint. Whilst not everyone with ADHD may need extra support, the resident’s obvious anxieties and difficulties vocalising his concerns, were repeatedly evident throughout his communications with the landlord. This should have been a prompt for complaint handlers to have explored if reasonable adjustments or alternative approaches were required, to assist the resident through the complaint process.
The landlord responded to the resident’s original complaint 38 working days after receiving his complaint, with intervention from this service. This response time far exceeded the response timescales set out in the landlord’s complaint policy, which was 10 workings days. This service also notes that the landlord delivered its stage two response three working days after its agreed target response time. If the landlord needed more time, in accordance with its complaint policy, it should have explained to the resident that it needed an extension.
The landlord considered the resident’s communication on 15 October 2021, as a complaint escalation request. However, the wording of the resident’s communication includes new complaint elements, in addition to the elements previously raised. It was reasonable for the landlord to have escalated the resident’s complaint at this stage. However, it was inappropriate that the landlord did not seek further clarification from the resident about his reasons for dissatisfaction, to ensure that all matters were addressed. This resulted in parts of the resident’s complaint not being investigated at stage two, such as the waste pipe.
When the resident attempted to raise a new complaint about the condition of the waste pipe in May 2022, the landlord said that it had already provided a response and no issues were found. No evidence has been seen, to show what information had been communicated to the resident and when. As there was no mention of the waste pipe in the landlord’s stage two final response, it could be argued that the complaint about the waste pipe had not completed the landlord’s internal complaint process. In view of this, the resident was denied the opportunity for his complaint about the waste pipe to be reviewed by the landlord, before being progressed to this service.
Overall, the landlord’s complaint handling was poor and there was a lack of oversight over the issues in the case. The landlord failed to recognise or adequately address the resident’s elevated anxieties throughout its complaint handling. Failures in the landlord’s complaint handling contributed to the resident’s extended period of distress, loss of confidence and delays in getting matters resolved.

Determination

In accordance with paragraph 52 of the Housing Ombudsman scheme, there was maladministration in the landlord’s response to the resident’s concerns about asbestos and the landlord’s management of asbestos.
In accordance with paragraph 52 of the Housing Ombudsman scheme, there was service failure in the landlord’s response to the resident’s reports of a leaking and defective waste pipe.
In accordance with paragraph 52 of the Housing Ombudsman scheme, there was maladministration in the landlord’s complaint handling.

Reasons

The landlord failed to effectively manage the resident’s concerns about asbestos. Once it became aware that the asbestos in the shed roof had become damaged, the landlord failed to take reasonable care to ensure that the resident was not further exposed to released asbestos fibres. The shed continues to be in use at the time of this investigation, despite remedial works remaining outstanding. The landlord also failed to remove asbestos debris found outside of the shed in an appropriate timeframe. The landlord’s lack of timely, decisive action, to minimise the risk of exposure to asbestos fibres, placed the resident and members of the public at risk. The resident continues to worry about asbestos, causing the resident distress.
Despite initial delays, the landlord attempted to resolve the resident’s concerns about a leaking and defective waste pipe, by arranging a CCTV survey to investigate their condition. However, the timescale for completing the survey was excessive and beyond the response timescales set out in the landlord’s repairs policy. Whilst the CCTV survey shows the pipe to be in reasonable condition, it is not clear if the tenant was made aware of the findings from this survey or recommendations arising. The resident was not kept adequately advised or informed. The resident has continued to pursue his concerns about the condition of his waste pipe, causing the resident distress, time and trouble.
The landlord failed to recognise or adequately address the resident’s elevated anxieties through its complaint handling and did not consider whether there was additional support that it could offer to aid the dispute resolution process. The landlord did not handle the resident’s complaint within the timescales set out in its internal complaint procedure at stage one or stage two. The landlord failed to seek clarification from the resident about his dissatisfaction, when he raised additional complaint elements. This resulted in parts of the resident’s complaint not being investigated at stage two. The resident was denied the opportunity for his complaint about the waste pipe to be reviewed by the landlord, before being progressed to this service.

Orders

Within four weeks of the date of this report, the landlord is to pay compensation of £950 to the resident, which has been determined in the line with the Ombudsman’s remedies guidance and is broken down as follows:
1. £500 in recognition of the distress caused by the landlord, in failing to manage the resident’s concerns about asbestos and then failing to manage the damaged asbestos.
2. £150 in recognition of the distress, time and trouble caused by the landlord, in failing to manage the resident’s concerns about the waste pipe.
3. £300 in recognition of failures with complaint handling.
The landlord is to write to the resident within four weeks of the date of this report, to:
1. apologise for the failings identified in this report.
2. engage with the resident in an effort to manage his concerns in respect of asbestos. The landlord may wish to consider adopting a mediated approach to the resident’s ongoing concerns about asbestos.
3. make suitable arrangements, to secure the shed from use and maintain this until the landlord is satisfied that all remedial actions have been completed.
4. fully explain to the resident how it will manage asbestos in his home and within his shed from here after.
5. provide a copy of the CCTV pipe condition survey to the resident, if the landlord has not already done so.
The landlord is to provide evidence to this service that it has complied with the above orders, within four weeks of the date of this decision.
Within six weeks of the date of this report, the landlord is to:
1. review its complaint handling on this case, to identify any learning opportunities. In particular, such a review must consider the factors surfaced relating to the following:
  1. a review of landlord’s internal guidance on recording vulnerabilities (temporary or permanent) and the landlord’s response to vulnerabilities raised during the complaint process. The landlord should take into considerations learnings from in the Ombudsman’s recent spotlight report on knowledge and information management.
  2. a review of the landlord’s internal guidance on closing complaints, where there are outstanding actions. The landlord should consider how it ensures matters are resolved following complaint closure and whether additional measures are required where a resident’s safety could be at risk.
2. Within six weeks of the date of this report, the landlord must set out its intention to progress any identified learnings onto its operations within a three-month period.