Jigsaw Homes Tameside (202108371)

REPORT

COMPLAINT 202108371

Jigsaw Homes North

14 November 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 asbestos being identified at the resident’s property.

Background

2. The resident is an assured tenant of the landlord. The property is a three-bedroom house.
3. In May 2021 the landlord arranged for an asbestos survey to be carried out at the resident’s property as it was planning to renew her kitchen and bathroom. The survey found that there was white asbestos (chrysolite) present in the ceilings of the property and in mastic around the doors and windows outside. The report recommended that the asbestos be managed in situ and inspected at intervals, with the exception of the kitchen ceiling where it recommended “remove if affected by refurbishment work otherwise manage in-situ”. The landlord made the decision to manage all the asbestos in situ and arranged for it to be inspected each year when it carried out the annual gas safety inspection of the property.
4. In July 2021 the resident contacted this Service as she was worried that the kitchen fitter had informed her there was asbestos throughout the house and the landlord had not responded to her complaint about this, and she wanted to be rehoused because of the poor condition of the property. The landlord raised a complaint on 29 July 2021 and in its stage one complaint response on 11 August 2021 it said that it had not been able to find any record of her complaint which she said had been hand delivered to one of its offices. It provided the resident with a copy of the asbestos report and said it had complied with the legislation related to managing asbestos. It also confirmed that no repairs were outstanding at the property that might have suggested it was in poor condition and provided a link to apply to be rehoused.
5. In December 2021, as the resident was still concerned about asbestos and requesting she be rehoused, the landlord explained that it would only consider rehousing if the property was not fit for habitation and that there was no evidence that this was the case. However, it arranged for a surveyor to inspect the property in the new year. During the inspection in January 2022, the surveyor said that the property was in good condition but noted that there had been some deterioration and crumbling of the kitchen and living room ceilings and arranged for them to be encapsulated. The asbestos contractor carrying out the encapsulation noted that though the ceilings were in reasonable condition they were “displeased” with some areas as they had previously been patched up. As a result of this the landlord offered to replace both ceilings, and detailed all of this in its stage two complaint response.
6. The resident contacted this Service in February as she was unhappy with the landlord’s response and said although it had checked that the asbestos was not in the air in January 2022, during that visit she had been told that she and her children would have to stay upstairs whilst the landlord replaced the ceilings downstairs, and she was not happy to do that.
7. The landlord has informed this Service that in April 2022 following replacement of one ceiling the resident requested that it did not replace the other, and that as the work was non-essential it had agreed to the resident’s request. It also stated that it had not asked the resident to stay upstairs whilst it replaced the ceilings, had suggested she leave the property for a few hours and offered reimbursement of any reasonable subsistence cost for the time she was away from the property.

Assessment and findings

8. The resident has expressed her concerns regarding the possible effect the asbestos could cause to her and her families health. The Ombudsman does not doubt the resident’s concerns about the effect of asbestos of her health; however, the Ombudsman is not able to determine matters of liability or causation and may not consider complaints which would be more reasonably dealt with via another organisation or procedure. This is in line with paragraph 42(g)of the Housing Ombudsman Scheme, which states that “The Ombudsman may not consider complaints which, in the Ombudsman’s opinion concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, other tribunal or procedure.
9. Part 1 of the Housing Act 2004 relates to housing conditions. This states that landlords have a duty to review housing conditions and identify any hazards that might exist. The Housing Health and Safety Rating System (HHSRS) details 29 different types of housing hazards and the effect that each may have on the health and safety of occupants. Asbestos is one of the 29 hazards set out in the HHSRS. Under the HHSRS, the landlord needs to identify the location of any asbestos in the property, assess how vulnerable it is to damage and identify any current damage or potential fibre release. Where a hazard is identified, it is classified as Category 1 (being a serious and immediate risk to health or safety) or 2 (a less serious or urgent risk). The landlord must take appropriate enforcement action in relation to any Category 1 hazards.
10. In May 2021, as the landlord was planning to renew the resident’s kitchen and bathroom, it took appropriate steps to carry out an asbestos survey first. This was in line with its Asbestos Management Policy, which states that “Where there is no record of asbestos related information for a domestic property, a survey will be undertaken ahead of any works taking place.” The landlord has provided this Service with a copy of the asbestos report, which states that “materials with a Material Risk assessment score of 10 or more should be regarded as an immediate high risk with a significant potential to release fibres if disturbed. Scores of between 7 and 9 are regarded as medium risk and between 5 and 6 a low risk. Scores of 4 or less are a very low risk.”.
11. Asbestos was found in the form of chrysotile (white asbestos) in the ceilings and in mastic to the side of the door and windows externally. The material risk assessment score for the asbestos found in the ceilings was 4, and the material risk assessment score for the asbestos that was found in the mastic was 3. The recommendations in the report was for the asbestos to be managed in situ and inspected at intervals, with the exception of the ceiling in the kitchen/diner where the recommendation was “remove if affected by refurbishment work otherwise Manage in-situ”.
12. In view of the recommendations in the asbestos report, it was reasonable that the landlord decided to manage the asbestos in situ and did not take any action to remove the asbestos at this point, if it was satisfied that the kitchen refurbishment would not affect the asbestos in the kitchen ceiling. It was also reasonable for it to arrange to inspect it when it carried out its annual gas safety inspections, as this was in line with its Asbestos Management policy that states that property’s will be inspected during the annual gas safety inspection to “to enable information stored on the Asbestos Register to be checked for visual condition. Asbestos condition will be monitored for deterioration and actioned appropriately.”
13. When this Service contacted the landlord in July 2021, as the resident raised concerns about the asbestos in the house and the lack of response to a complaint she had made, the landlord took appropriate steps to contact the resident to discuss her concerns and clarify what the complaint was about. When the resident said that she had hand delivered a complaint to its offices, the landlord made appropriate attempts to try to track down the complaint. However, as the resident was unable to remember which office she had hand delivered it to, or when, this was not possible. 
14. When the resident explained that she was worried about the impact the asbestos could have on her family’s health, that she wanted to move because of the asbestos and the property being in a run–down condition, the landlord responded appropriately in its stage one complaint response by supplying the resident with a copy of the asbestos survey, for reassurance. It also explained that the asbestos surveying company had said that the asbestos could be managed in situ and monitored, and that in practice, this meant the condition would be checked during the annual gas safety visits.
15. It took appropriate steps to explain that no damage had been identified that suggested the asbestos should be removed or encapsulated and that it had complied with all current legislation in relation to the safe management of asbestos. It also explained that it had taken appropriate steps to employ a specialist contractor to ensure that some of the coating of the bathroom ceiling had been safely removed in preparation for the new bathroom lighting that would be installed as part of the bathroom refurbishment. 
16. In response to the resident saying that her home was in poor condition, it was appropriate that the landlord confirmed that there were no outstanding repairs and said that it hoped that the upcoming bathroom renewal, in addition to the recently completed kitchen renewal, would improve the resident’s feelings about her home. It was also appropriate that it provided her with a link to apply for rehousing. However, it would also have been helpful if it had inspected the property at that time to check the condition of it too.
17. Once this Service informed the landlord, in December 2021, that the resident felt that the complaint had not been resolved, it responded appropriately by contacting the resident to clarify what the outstanding issues were and escalating the complaint. As the resident was still concerned about the asbestos in the house, and wanted to be rehoused because of it, the landlord took appropriate steps to explain that it would only consider rehousing if the property was not fit for habitation and that there was no evidence to support that it was not. It also took appropriate steps to check the condition of the property and to reassure the resident by arranging for a surveyor to inspect the property in the new year.
18. During the inspection on 18 January 2022, the surveyor noted that although the property was in good condition, there had been some deterioration of the ceilings in the living room and kitchen, since the previous inspection in May 2021. In view of that the surveyor acted appropriately by considering whether to replace the ceilings and ultimately deciding to arrange for an asbestos contractor to encapsulate the two ceilings on 20 January 2022 and to carry out an air test. Although the landlord has not provided this Service with the results of the air test, when the asbestos contractor who carried out the encapsulation, reported back that he was “displeased” with some areas of the ceilings, the landlord responded appropriately by agreeing to replace the two ceilings.
19. In its stage two complaint response the landlord explained that it was replacing the ceilings as a further improvement and has advised this Service that as the replacement of the ceilings was non-essential, it had agreed not to replace the second ceiling as the resident had requested this be cancelled. As the landlord has confirmed that the ceiling replacement is not essential this Service considers that response to be reasonable. However, this Service will be recommending that the landlord contact the resident to confirm that she would not be required to stay upstairs if the ceiling was replaced and to confirm whether she wants the replacement to go ahead. To conclude, although this Service does not doubt that the resident was worried when asbestos was found in the property, the Ombudsman has found no evidence of maladministration by the landlord , in respect of its response to findings of asbestos at the resident’s property.

Determination

20. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its response to asbestos being identified at the resident’s property.

Recommendations

21. The landlord is recommended to contact the resident to explain that she would not need to stay upstairs whilst it replaced the ceiling downstairs, that she would be able to leave the property for a few hours whilst the work was carried out and that it would reimburse any reasonable subsistence costs. If the resident decides that she would like the ceiling to be replaced, the landlord should make arrangements for this to take place.