Haringey London Borough Council (202112771)

REPORT

COMPLAINT 202112771

Haringey Council

16 December 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

1. The complaint is about the landlord’s response to the residents’ reports of:

1. asbestos in the property.
2. the air quality and lack of sufficient ventilation.
3. priority for transfer based on overcrowding and an undersized bedroom.

Jurisdiction

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
3. Paragraph 42(k) of the Scheme says the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, “fall properly within the jurisdiction of another ombudsman, regulator or complaint-handling body.”
4. After carefully considering all the evidence, in accordance with paragraph 42(k) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction: Overcrowding and an undersized bedroom
5. As part of the resolution to her complaint, the resident has requested to be permanently moved to alternative accommodation. This is on the basis she is statutorily overcrowded which she says is affecting her and her family’s health. She also states that the council have failed to carry out a suitability report despite her requests which is affecting her priority banding.
6. The landlord’s housing allocation policy states it will allocate social housing in accordance with Part 6 of the Housing Act 1996. Part 6 of the Housing Act (1996) governs the allocation of social housing stock in England. It sets out the circumstances and criteria to consider when making decisions about offers of property. This includes things such as applicants living in unsuitable conditions and applicants who need to move on medical or welfare grounds.
7. The Housing Ombudsman can only consider complaints about transfer applications that are outside of Part 6 of the Housing Act (1996). As a result, this aspect of the complaint is better suited to the Local Government and Social Care Ombudsman (LGSCO) to investigate because it can review complaints about applications for rehousing that fall under Part 6.
8. The Housing Ombudsman can consider the resident’s other concerns with this assessment focusing on the reports of asbestos in the property and lack of sufficient ventilation.

Background and summary of events

9. The resident is a secure tenant of the landlord and the property is a 3-bedroom maisonette. The resident initially occupied the property at the start of the tenancy in June 2015 with her three children. She later updated the occupancy following the birth of her two other children in June 2019 and March 2021.
10. Housing Services were previously carried out by an arm’s length management organisation (ALMO) but have since returned to the landlord.
11. The resident contacted the landlord on 3 September 2019 stating there were issues with asbestos in the property and that she had previously requested a full asbestos survey which was not done.
12. The landlord responded on 24 September 2019 and said that:

4. An asbestos refurbishment survey had been carried out on 14 May 2019.
5. The surveyor had taken samples and some of these were identified as asbestos.

13. There were no legal requirements to remove asbestos once discovered, if in a safe condition and there were no plans for removal to take place.
14. It advised the resident if the material started deteriorating or becomes damaged, to inform it immediately.
15. On 15 June 2020, the resident sent an email to her landlord, councillor, and MP summarising her complaint and the lack of action she felt had been taken to address it, which included:

1. Lack of ventilation in the bathroom and WC leading to mould growth.
2. The presence of asbestos material in the property for which she was not advised of prior to moving in and that there were no plans to remove it.  Furthermore, she remained unclear and worried about the exposure to the asbestos material.

16. The repair logs show a repair order was raised on 29 June 2020 for an inspection related to the installation of a fan in the downstairs WC. The same day a repair order was issued for a surveyor to inspect for damp in the property with a view to installing additional fans in bathroom and downstairs WC.
17. The repair log details that an electrician visited the property on 1 July 2020.
18. On 2 July 2020 the landlord responded directly to the councillor/MP explaining the following:

1. The resident initially refused to arrange an inspection or allow works to be done until after Environmental Health had inspected the air quality.
2. On 1 July 2020 it sent an electrician to install a fan however he was refused access.
3. An inspection at the property was scheduled for 8 July 2020 to assess the mould and airflow issues.
4. An asbestos survey was carried out on 14 May 2019 by the asbestos contractor. Asbestos material was identified but was in a good and safe condition. It stated materials not accessible during the survey (e.g., inside blocked cupboards) may contain asbestos therefore caution must be taken before any major work is carried out.
5. It confirmed there were no legal requirements to remove asbestos once discovered, and there were currently no plans to remove it. The resident should contact them if the material starts deteriorating or becomes damaged.
6. It acknowledged that whilst the asbestos survey report stated that an inspection was due on 14 May 2020, this was the view of the surveyor. The landlord did not organise re-inspections unless they were necessary (e.g. materials have deteriorated or repairs are planned).

19. A property inspection sheet shows, on 8 July 2020 the landlord inspected the property detailing what works were required. This included:

1. Supplying a ‘ventilator’ in the living room.
2. Disconnecting the existing fan in the WC and replacing it with a condensation control fan. It noted that the WC room was very warm and would benefit from a fan to push air out. This should have an over run of 10 minutes to help keep the room clear of mould.
3. Replacing the existing fan in the bathroom as the current one was not sufficient and for the fan to have an over run of 10 minutes.

20. On 24 July 2020 the resident contacted her local councillor and MP again raising concerns regarding the ventilation in the property for which she was advised the ventilation was insufficient. In addition, that she was unable to re decorate the property as she was not comfortable that she would not disturb the asbestos.
21. The landlord directly responded the councillor and MP on 10 August 2020repeating its position regarding the asbestos issue.
22. Nine months later, on 25 May 2021 the resident contacted the landlord and advised there had been no works done to install the extractor fans and the lack of ventilation was causing black mould. She stated she had paid privately to have it removed. Also she had commissioned her own asbestos survey with a pre report stating the living room pipe (located in a cupboard) may be exposed. She was wating for the full report, details of which have not been provided to this service.
23. On 16 July 2021 the resident requested an Independent Review (Stage Two) of her complaint. She highlighted the main concerns were asbestos and air quality in her home. She felt disadvantaged as she had not been made aware of the asbestos in the property at the start of the tenancy.

1. She also stated she had raised concerns regarding the possibility of the asbestos being disturbed.
2. She confirmed an inspection had taken place on 8 July 2020 to assess the air quality and was advised the extractor fans were inadequate which was contributing to the mould problem.

24. The landlord acknowledged the resident’s request for stage two escalation on 28 July 2021 and advised it would provide a response by 23 August 2021. It noted there may be delays due to operational responses due to Covid 19 priorities but would keep the resident informed.
25. On 2 August 2021 the resident responded adding that she would also like to claim compensation for ‘poor housing condition’.
26. On 13 August 2021 the repair log shows an order was raised for an inspection to be carried out with the view of installing a fan/PIV (positive input ventilation) unit in the downstairs WC.
27. An internal email of 13 August 2021 states ‘a survey was carried out in 2019 and noted the asbestos was in a good condition and safe to remain’. It also noted it had ‘a request in May 2021 regarding possible asbestos’
28. On 23 August 2021 the landlord sent its final response, an independent review which formed part of its complaint’s procedure. It reiterated its response from stage one stating:

6. A full asbestos refurbishment survey was conducted on 14 May 2019 noting the presence of asbestos material.
7. There was no legal requirement to remove asbestos once discovered if it’s in a safe condition and to contact them if the material starts to deteriorate or becomes damaged. It also stated it had sent a copy of the report at the time.
8. An operative visited the resident in July 2020 and recommended an extractor fan be fitted.
9. This was issued to the ALMO, however they no longer work for the landlord.
10. It noted from its system that the case had been closed as it could not arrange access via phone calls or site visits. However, it had raised the job again and booked it for 27 August 2021.
11. It did not find fault with how the stage one complaint was dealt with and directed the resident to contact this service should she remain dissatisfied.

29. The resident responded on 22 September 2021 again highlighting her concerns that she felt had not been addressed. These were regarding:

1. Poor air quality and ventilation. She confirmed an operative attended on 26 August 2021 and advised it was not possible to install an air vent given there were no external walls to place them.
2. Asbestos in the property.
3. Housing conditions that were having direct impact on her and her family’s health.

30. The resident contacted this service in October 2021 advising she was unhappy with the landlord’s response to her complaint and the ineffectiveness to tackle the repair issues and provide a timescale for the works. She wanted to seek compensation from the landlord.
31. During recent contact with the resident she has explained that although recent visits have been carried out no works have been done.

Assessment and findings

Asbestos

32. The landlord has a duty to assess and manage the risk of asbestos in its properties under the Control of Asbestos Regulations 2012.
33. As part of the landlord’s voids process, a refurbishment asbestos survey is carried out before any works are started. Where asbestos has been identified and is likely to be disturbed during the works it will be removed as necessary.
34. The Health and Safety Executive (HSE) states ‘If existing asbestos containing materials are in good condition and are not likely to be damaged, they may be left in place; their condition monitored and managed to ensure they are not disturbed’.
35. The landlord’s ‘guide to asbestos’ provided to residents states that if the asbestos is in good condition, it is best practice to leave it in place. It also directs tenants what to do and who to contact if they are concerned about asbestos in their home.
36. The asbestos report provided to this service shows that the landlord followed its policy and process by commissioning a refurbishment asbestos survey to be carried out in May 2019, details of which were provided to the tenant. The report detailed the risks as low to very low with a management action required to reinspect 12 months later. Also, it followed the guidance given by the HSE to leave undamaged asbestos material in place.
37. The resident followed the advice in the guide to asbestos provided by her landlord, by reporting her concerns that the asbestos material may be ‘exposed’. This is evidenced in her email of 25 May 2021 and her formal complaint letter of 16 July 2021 whereby she referenced previous report of “the possibility of it being disturbed”. In an internal email dated 13 August 2021 the landlord acknowledged the May 2021 report regarding possible asbestos.
38. Nevertheless it failed to follow up this report or further reports of damaged/disturbed asbestos made in June 2020 (stage one), and July 2021. It also failed to address these concerns in its stage two response, only echoing its stage one response regarding the asbestos report carried out in May 2019. Its failure to respond to the resident’s new concerns relating to the asbestos was not appropriate as this would have been frustrating and distressing for the resident.
39. It was not reasonable that the landlord did not follow the HSE advised to monitor/manage possible disturbed asbestos and did not follow the asbestos surveyor’s recommendations that the property be inspected the following 12 months, especially in light of the resident’s additional reports of damaged asbestos. It simply stated it was not its policy to do so. Although the policy does not require annual inspections it does set out in its asbestos guidance that it will respond to reports of possible damage.
40. The landlord’s unwillingness to reinspect despite the further reports of deterioration in June 2020, May 2021 and July 2021 shows it did not take the resident’s complaint sufficiently seriously. It could have offered reassurance to the resident by carrying out a further asbestos survey or assessment of the area of concern. If it had reinspected, the landlord would have been following it’s procedure and in line with its asbestos guidance. Failure to do so meant it failed to follow its own procedure and guidance.

Ventilation

41. The repair log provided shows basic details of inspections carried out by the landlord in ascertaining what works were required to address the ventilation issue. It carried out numerous inspections each time identifying an issue with the ventilation in the property which was contributing to mould growth. This is evidenced in the repair log which confirms an inspection was completed on 1 July 2020 and 1 April 2021 and in the inspection notes from the 8 July 2020 which outline what works maybe required, such as having an overrun on the extraction fans and that the existing fan in the bathroom was not sufficient.
42. Similar concerns were echoed in the works order from August 2021 which details the need to instal a fan/PIV (positive input ventilation) unit in the downstairs WC. The repair log shows no completed date therefore demonstrating that the work remains outstanding. An order note dated 12 October 2021 shows these details were sent to various employees within the organisation.
43. In summary there is no evidence to demonstrate the landlord took action to explore alternative options following its inspection in August 2021 where it identified there was no external wall for the fan to be ventilated to; or provide the resident with an action plan of what it was going to do regarding the issues it had identified including mould growth, during its inspections. Subsequent recent contact with the resident confirms the works remain outstanding.
44. It has been acknowledged the initial delays the landlord had in gaining access to the property and the problem it encountered with installation, given the location of the WC with no external wall. Nevertheless, the landlord had a responsibility to carry out the necessary repairs/works within a reasonable timeframe in accordance with its obligations under Section 11 of the Landlord and Tenant Act (1985). The evidence demonstrates that the resident reported the issue in June 2020 and despite several inspections by the landlord, some of which carried out in the last couple of weeks remains outstanding.
45. Under housing Act 2004 part 1, the Housing Health and Safety Rating System (HHSRS) landlord have a duty to ensure the property is free from hazards such as damp and mould. Although it is not possible for a local authority to enforce the provisions of Part 1 of the Housing Act 2004 against itself, it should however, have regard for this Service’s spotlight report on damp and mould. The report outlines that landlords should take a pro-active, zero tolerance approach to damp and mould, ensuring that their responses to damp and mould are timely and reflect the urgency of the issue.
46. This service acknowledges that this would have been a frustrating time for the resident and the landlords’ failure to adequately respond to the resident’s complaint, evidently caused her distressed and inconvenienced.

Determination (decision)

47. In accordance with paragraph 55 of the scheme there was maladministration by the landlord in respect of its handling of the resident’s reports of asbestos.
48. In accordance with paragraph 55 of the scheme there was maladministration by the landlord in its handling of the residents reports of poor ventilation in the property.

Reasons

49. The landlord failed to address the resident’s concerns regarding the asbestos or clarify any concerns she had about exposure. This would have been very distressing for the resident and could have been alleviated by inspecting the damaged area again and clearly explaining the level of risk. The asbestos guide was not sufficient on its own in this instance.
50. The landlord did not act upon various reports and its own inspections relating to the insufficient ventilation in the property that it accepted was contributing to the mould growth. This was first identified over two years ago during its inspection of July 2020.

Orders

51. The landlord is ordered to within four weeks of this determination:
52. Pay the resident £600 in total compensation comprising:
    1. £250 for the distress and inconvenient caused to the resident by the landlord’s failures in handling her reports relating to asbestos in the property.
    2. £350 for the distress and inconvenient caused to the resident by the landlord’s failures in handling of her reports of insufficient ventilation.
53. Carry out an up-to-date asbestos survey, taking any necessary action and follow any recommendations made.
54. Instruct a suitably qualified person to inspect the property and draw up a schedule of works to address the lack of sufficient ventilation. A copy of the schedule of works should be shared with the resident and the Ombudsman and should give a timescale of when the works will be completed.

Recommendations

55. The landlord to review the handling of reports of damp and mould and consider whether it would be appropriate to review or introduce a policy in relation to how it responds to reports of damp and mould. The landlord to refer to the Ombudsman’s recent Spotlight report on damp and mould for further detail and recommendations.
56. The landlord to include more details in its repairs log including when a specific repair job is closed or completed.