Gentoo Sunderland Ltd (202108649)

REPORT

COMPLAINT 202108649

Gentoo Sunderland Ltd

31 May 2022

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about
1. the landlord’s management of asbestos at the resident’s property.
2. the landlord’s handling of other disrepair issues including damp and floor repair.

Background and summary of events

The resident is an assured tenant of a three bedroom house and her tenancy began on Monday 24 August 2020. The resident says that on moving in to her property she was provided with a report stating the property did not contain asbestos and asbestos was only present in an outhouse.
In the period from March 2020 until August 2020, the property was void and the landlord undertook various renewal works including brickwork, plumbing and replacement of doors and locks. The landlord also arranged an asbestos survey on 24 March 2020 with a licensed contractor. This was described as a ‘destructive, highly intrusive survey’ and involved taking laboratory samples from the property for assessment.
The survey found that there were two sets of floor tiles in the dining room on the ground floor that contained asbestos. These were described as low risk and very low risk respectively. It was recommended that the floor tiles were removed. The surveyor was unable to access the entire property and it was noted that some asbestos could be present in inaccessible areas such as gaskets to tanks in the loft.
The survey states that “the aim of the survey was to locate and identify the presence of ACM’s (Asbestos Containing Material) or suspected ACM’s for removal, prior to Refurbishment of the Hall, Living Room, Dining Room floors and walls for preservation works and to all poly tiles throughout of the property and for management purposes to the remainder. Although the presence of asbestos within non-accessed areas has not been confirmed, caution should be exercised, and all non-accessed areas should be presumed to contain asbestos until proven otherwise. If any works are to be carried out in these areas in the future it is necessary for these areas to be inspected beforehand.”
The surveyors also clarified that they “cannot guarantee that all ACM’s will have been located during the survey as in some cases only demolition may reveal ACM’s hidden within the fabric of a building.”
The floor tiles identified in the survey were removed on 31 July 2020 by a licensed company working on behalf of the landlord.
The resident says that shortly after moving in at the end of August 2020, she became aware that there was a damp problem and she moved out for a time due to the damp affecting her daughter who has a severe lung condition. The resident also says that she reported a fault with a rainwater downpipe in August of 2020.
It is unclear precisely when this was reported but the repair records show that the first recorded action to inspect for damp and repair the faulty guttering (thought to be the cause by both resident and landlord) was not until 8 February 2021.
Similarly, in the period prior to the resident making a formal complaint, there was also an acknowledged disrepair issue with an uneven dining room floor and kitchen floor. The evidence suggests that work on the dining room floor was underway when the resident moved in but was not completed until after December 2020. Work on the kitchen floor continued after this in February 2021.
The landlord later described these works as ‘ongoing’ due to problems with supply of material with one of its contractors. There was a delay in completing floor repairs of at least three months due to these supply problems. The resident has said she was effectively without a dining room floor from the end of August until December 2020.
On 18 February 2021, repair work to replace the kitchen floor uncovered tiles containing asbestos. On discovery of the tiles, a licensed operative attended within 24 hours to remove the material. However, this operative was required to attend again six days later to remove more tiles before the work could be completed by the landlord.
The resident made a complaint via email on 19 February 2021. The resident said that she had reported damp on 8 February after having noticed more damp penetrating through the wall in the front bedroom and living room. The resident complained that nothing had been done about her initial reports in August and she had been told that she would have to wait a further two months for a repair appointment, which was not available until 16 April 2021.
The resident complained that planned works to repair her uneven kitchen and dining room floor had been delayed by three months due to problems with the supply of plywood. This had caused her dining room to remain in an unsafe state ‘with a trench running down the middle’ and access to the kitchen to be restricted.
The resident went on to say that following her kitchen floor being taken up for the repair, asbestos containing tiles had been exposed causing further delay and a health risk. The resident complained that she would be unable to use her kitchen for a week due to the extended repairs and had no cooker or washing machine.
The resident also complained that she was expected to pay for the kitchen floor covering. The resident requested copies of the landlord’s compensation policy and privacy and security policy since she said her property was not secure since workmen and other people had wandered into her back garden.
Following the resident’s complaint on 19 February 2021, the landlord contacted the resident by phone on 22 February and an operative attended and resolved the issue with the blocked guttering on 25 February 2021.
The flooring issue was also completed in both rooms on 25 February 2021 allowing the resident to regain access to her kitchen which had been unusable from 18 February when the asbestos tiles were discovered.
The landlord responded to the resident’s complaint on 11 March 2021. The landlord apologised that it had been unable to offer a repair appointment to the resident for the blocked guttering until 16 April and acknowledged that this exceeded its expected timeframe. The landlord said there had been an ‘increase in workload’ due to poor weather and Covid-19 restrictions had caused supply problems. The landlord confirmed it had arranged to bring forward the repairs and had carried them out on 25 February 2021.
The landlord initially said that fitting and supplying floor coverings was the tenant’s responsibility, as stated in its tenancy handbook. The landlord supplied the resident with a copy of its claims policy and said that “as an attempt to offer a gesture of goodwill for the damage to your walls due to water ingress from your guttering” decoration vouchers would be supplied although no amount was specified.
The resident escalated her complaint on 22 March 2021. The resident did not accept the landlord’s explanation of the delays in repair work. The resident said that:
1. she had been without flooring in the dining room from August 2020 until December 2020
2. ‘one third of the ground floor’ had been unusable as a result of extended works.
3. the situation was unsafe and placed her household at extra risk from protruding nails and other hazards.
4. the damp issue had remained unresolved for an extended period despite her reports.
5. the quality of the flooring repair was below standard
6. The landlord had not communicated to her about the cost of the kitchen floor covering until work commenced and so she had no time to prepare or plan for this financially.
7. The work involving asbestos tiles had been poor and that her exposure to it had not been minimised as it should have been. (as not all the asbestos material had been removed when the operatives had first attended.)
8. action should be taken to remedy the privacy issue in her back garden and compensate her for the damage caused by the damp and replacing the kitchen floor covering.
In response to the stage 2 complaint, the landlord visited on 24 March 2021. Following the visit, some remedial repairs were carried out including sealing a window in the living room and repainting was offered to the resident. The landlord also carried out a damp test and said the readings were at acceptable levels.
On 26 April 2021, the kitchen floor covering was replaced by the landlord without cost to the resident. On 30 April 2021, the landlord issues a formal stage two complaint response apologising and confirming the actions it had taken including its agreement to supply and fit the kitchen floor covering and fencing. The landlord said it was taking these actions to provide redress for the distress caused to the resident by the extended period of works.
On 30 July 2021, a new six foot fence was installed by the landlord. However, the resident has said this is not sufficient to provide security to her property and would like a further fence installed.
The resident contacted this service on 12 July 2021 stating that although the landlord had taken steps to resolve some of the disrepair issues, insufficient redress had been provided for her distress and inconvenience since moving to the property, especially regarding the asbestos issue and the lack of facilities during works.

Assessment and findings

Section 11 of the Landlord and Tenant Act 1985 places a statutory obligation on the landlord to keep the structure and exterior of the property in repair; this includes an obligation to stop any rising or penetrating damp. The landlord also has a responsibility under the Housing Health and Safety Rating System, introduced by The Housing Act 2004, to assess hazards and risks within its rented properties.
Damp and mould growth are a potential hazard and the landlord is required to consider whether any damp problems in its properties amount to a hazard and require remedying. Similarly, asbestos is one of the 29 hazards listed in the HHSRS and the presence of asbestos is known to be associated with health problems including lung diseases.

Asbestos Management

The legislative requirements on landlords for managing asbestos and asbestos containing materials (ACM) are set out in the Control of Asbestos Regulations 2012. These rules are mainly concerned with identifying ACM, assessing the level of risk and ensuring that those handling asbestos are licensed by the Health and Safety Executive. There is also a ‘duty to manage’ ACM effectively by keeping records of properties known to contain asbestos and having plans in place for tackling or removing the asbestos. These rules do not necessitate the removal of all ACMs as it is sometimes safer to keep building materials undisturbed.
The landlord has provided a copy of its asbestos policy dated 27 January 2021 as well as its asbestos management procedure dated 30 November 2021. According to its asbestos policy, the landlord is “committed to ensuring the safety of our tenants, colleagues and any others who may be affected by asbestos in domestic and non-domestic premises that we own or have a responsibility for managing.”
The landlord’s asbestos policy says the landlord will:
1. Keep a register and keep up to date a register of all domestic premises containing known or presumed asbestos containing materials
2. Review and update each asbestos management plan at least every 12 months or sooner if there is reason to believe that circumstances have changed
3. Take reasonable steps to find if there are materials containing asbestos in domestic premises constructed prior to 2000 – this includes undertaking a management survey
4. Ensure an asbestos survey is carried out on void properties
5. Ensure asbestos is removed by a competent third party
The landlord’s asbestos procedure notes says that:
1. on release of asbestos within domestic dwellings a competent asbestos remedial/removal works contractor should attend within 24 hours to at least make safe
2. new tenants will be informed of the presence of asbestos by the Housing Operations team at commencement of tenancy.
3. All customers are provided with clear and simple information about our Asbestos Process, including the Repairs Policy.
4. All tenants will receive a tenant’s booklet on “Asbestos in the Home”
In addition to the above policies and procedures, the landlord has a repairs policy which gives an indication of expected timescales for repairs. These are emergency repairs within 24 hours, urgent repairs within 7 days and routine repairs within 28 days.
The role of the Housing Ombudsman is to assess how the landlord put in to practice its policies in this case and whether the actions it took following disrepair reports by the resident were reasonable or if there was any service failure in carrying out the duties outlined above. Enforcement of asbestos regulations is a matter for the Local Authority or Health and Safety Executive.
Having reviewed the actions taken by the landlord over the void period from March 2020 until August 2020, it is noted that the landlord arranged an asbestos survey and complied with the recommendations within the survey to remove the asbestos, and this was done by a licensed operative. These were all reasonable steps taken in accordance with its policy. It is also noted that the landlord responded promptly to the discovery of asbestos when the kitchen floor was taken up, and this was actioned within 24 hours as per its policy on 18 February. Although the operatives had to return again six days later to do a similar removal job, there is no evidence that the landlord’s asbestos handling overall knowingly placed the resident at serious risk of harm or injury.
However, the evidence suggests that there was some failure in terms of communication with the resident. Although some information was given to the resident in line with the asbestos policy, this information was either inaccurate or misleading for the resident. Given the resident’s concerns following her experience in a previous property, the landlord could have made the situation clearer for the resident when she first moved in, and could have avoided any misunderstanding by providing the most recent asbestos survey. An order for £50 compensation for this communication failure has been made below.

Floor Repair and Damp

It is not disputed by the landlord that there was significant delay in carrying out repairs at the resident’s property overall. There were delays by the landlord in responding to both the damp reports made by the resident as well as the flooring issues.
The resident says they reported damp in the property shortly after moving in during August 2020. The resident has said this in her complaint and the landlord has not specifically disputed this within the complaints process. It is therefore reasonable to conclude that the resident did bring concerns about damp to the landlord’s attention on moving in to the property in August 2020.
The first note by the landlord of an issue with damp is from 8 February 2021 after the resident contacted to say that the situation had worsened. The rain downpipe, drain and guttering was fixed on 25 February 2021 and the evidence suggests it was in a blocked or faulty condition from 24 August 2020 when the resident moved in until 25 February 2021.
Similarly, the dining room floor repair was ‘ongoing’ from when the resident moved in on 24 August 2020 until December 2020. There was then further work on the kitchen floor in the new year which was not completed until 25 February 2021.
The resident has said that due to the delay in carrying out the flooring repair the dining room was effectively unusable from August until December 2020. The resident also was unable to use their kitchen for a week due to the asbestos tiles that were uncovered in February 2021. The landlord subsequently agreed to provide the kitchen floor covering but this was not completed until 26 April 2021.
In hindsight, it would have been better to delay the resident moving in to her property, but clearly the landlord was not aware that there would be such significant supply problems causing an extended delay to the repairs.
The landlord has cited supply shortages and Covid restrictions as mitigation for the delay in repairs and although these issues may have contributed to the delay, Covid restrictions had significantly eased by August 2020 and this does not negate the impact of the disruption experienced by the resident overall from August 2020 to February 2021.
It is not disputed by the landlord that the identified service failures have caused considerable disruption and inconvenience to the resident. The delays in repairing the flooring resulted in the dining room being unusable for approximately 3 months. The kitchen was unusable for 1 week in February. The failure to promptly tackle the damp issue caused the resident extra distress given her daughter’s lung condition. Communication with the resident could also have been improved with regard to both the asbestos and the resident’s responsibility for the floor covering.
The landlord has attempted to put right what has gone wrong by providing redecoration vouchers, and then by agreeing to replace the kitchen floor covering, as well as a new garden fence on a discretionary basis. These are positive and resolution focussed steps, but they are not sufficient to compensate the resident for the six months of overall disruption and disrepair within her property.
It would be reasonable for the landlord to offer the resident compensation of £75 for each month of disruption over this period, in addition to the discretionary works already carried out. This is £450 compensation in addition to the £50 compensation for the communication failure in asbestos handling making a total of £500 compensation.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman scheme, there was service failure in the landlord’s management of asbestos in the resident’s property.
In accordance with paragraph 54 of the Housing Ombudsman scheme, there was maladministration in the landlords handling of other disrepair issues including damp and floor repair.

Reasons

The resident experienced significant disruption for the first six months of her tenancy due to ongoing disrepair problems, problems with flooring and unresolved damp. The landlord has apologised, acknowledged delays and has carried out discretionary works but this is not sufficient to put right what has gone wrong and financial compensation has been ordered.

Orders

It is ordered that the landlord offer the resident £50 compensation for failure in communication in asbestos management.
It is ordered that the landlord offer the resident £450 in recognition of delays and overall disruption due to disrepair during the first six months of her tenancy.

Recommendations

It is recommended that the landlord contact the resident to try and resolve any outstanding privacy issues related to fencing.