Kirklees Council (202016387)

REPORT

COMPLAINT 202016387

Kirklees Council

27 July 2022

Our approach

What we can and cannot consider is called the Ombudsman’s jurisdiction and is governed by the Housing Ombudsman Scheme. The Ombudsman must determine whether a complaint comes within their jurisdiction. The Ombudsman seeks to resolve disputes wherever possible but cannot investigate complaints that fall outside of this.

In deciding whether a complaint falls within their jurisdiction, the Ombudsman will carefully consider all the evidence provided by the parties and the circumstances of the case.

The complaint

The complaint is regarding the landlord’s response to the resident’s:
1. Concerns over damaged asbestos in the property.
2. Request for compensation.

Determination (jurisdictional decision)

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.
After carefully considering all the evidence, I have determined that the complaint, as set out above, is not within the Ombudsman’s jurisdiction

Summary of events

On 19 June 2019, while the resident was a tenant of the landlord, a contractor carried out an asbestos survey on behalf of the landlord. Records show that, of the parts of the property it was able to access, the survey identified the presence of asbestos in six separate locations (five confirmed and one assumed). The five confirmed instances were given a risk rating of 9 out of 12, deemed to be a “medium hazard”, indicating the presence of asbestos material situated in “high use, readily accessible positions, which may also be located in an area accessed on a routine basis for maintenance.”
Landlord records indicate that, on 27 September 2019, the resident began the process of purchasing her property under its Right to Buy scheme. Following delays to the process caused by the Covid-19 pandemic, the resident completed the purchase of the property via Right to Buy on 18 May 2020.
On 4 December 2020, the resident emailed the landlord to express concern that she and her family had been exposed to asbestos in her property, which she stated was damaged in at least two places and which had been damaged for “at least seven years”. She further noted that the landlord had known about the presence of asbestos in the property for a year and a half, following the survey carried out in June 2019. She stated that she wanted the situation “rectified” as soon as possible and that she believed the landlord had had a duty of care to her while she was tenant of the property, and during the Right to Buy process, and should have notified her of the survey’s findings.
The landlord replied to the resident the same day and advised that its Right to Buy Team were not able to assist, so her query had been escalated to the relevant Head of Service and it would update once it had a response.
There followed further correspondence between the resident and landlord, including an email sent by the resident on 4 January 2021 in which she advised her conveyancer had confirmed the landlord had not provided any asbestos survey within the property information. She stated that, had she known about the presence of asbestos in the property, it “would have influenced my desire to buy”. Despite the efforts of the staff member corresponding with the resident, they were unable to identify who was best placed to respond to the resident’s queries. The staff member therefore offered to open a Stage Two complaint for the resident, which they duly did on 12 January 2021.
On 18 March 2021, the landlord provided its Stage Two complaint response. it apologised for the delay in providing a response and, referring to a conversation had with the resident on 3 February 2021, explained that her complaint was “unique” which meant it had had to “liaise with a number of departments”. In its response, the landlord set out a background and its understanding of the complaint:
1. The resident had completed the purchase of her property in May 2020.
2. In December 2020, the resident contacted it to advise that a contractor she had appointed “had advised…that they suspected there was asbestos in the under-stairs cupboard” of the property and they were not willing to continue with the work as a result. The resident had therefore arranged for an asbestos contractor to take samples from the cupboard and in her pantry, where she had noticed two small holes where the resident believed “a shelf may have been removed prior to moving into your home.”
3. The resident also noted that the asbestos contractor had “taped over a hole where the electrical wires pass through the ceiling from the consumer unit and in the pantry.” The resident had stated she believed this may have been cut as part of a rewire carried out by the landlord in 2013, although the landlord advised that it had advised her of all works carried out to the property prior to her beginning her tenancy in August 2013.
4. The landlord noted that the resident had stated she was “not comfortable” with sharing the asbestos test she had commissioned.
5. It understood that, during its conversation with the resident, it had understood the “main basis of your complaint is that you were not supplied with the asbestos survey dated 26/06/19 until your solicitor asked for it after you had purchased your home.” The resident therefore felt the landlord had “failed” in its Duty of Care towards her, but it advised its legal team had stated it was not clear which Duty of Care the resident considered had been owed to her.
The landlord then made the following findings:
1. It advised its legal team had referred to ‘caveat emptor’ (‘buyer beware’), noting that the position applied to anyone buying a property (other than a new build or recently built property) and that people buying a property are advised to “commission a survey on their proposed purchase so that they purchase the property with knowledge of its state and condition”. Therefore, it advised it did not consider that it had owed the resident any “duty of care” during her purchase of the property, or that it had been obliged to provide her with a copy of the asbestos report carried out in June 2019.
2. It clarified that its Right to Buy Team advised all applicants that:
  1. “You are recommended to obtain an independent survey of the property”.
  2. The valuation of the property took into account “all structural defects (if any) set out in the (property report)”.
  3. The inspection carried out by the Valuer “is not a structural survey” and would therefore not contain comment on whether “any such part of the property is free from defect”.
  4. It provided a “Schedule of Defects” which contained “a description of any structural defects known to (the landlord) affecting the property…non structural defects or repairs have not been included in the Schedule”.
  5. “(The landlord) gives no warranty or guarantee that the defects mentioned in the offer letter are the only defects or problems affecting the property and the property is sold subject to any such matters that may exist at the date of this offer and/or at the date of the sale to you”.
3. It clarified that, at the date the resident bought the property, the purchase was “subject to the above Survey and Valuation advice”. The landlord noted that during earlier correspondence, it had advised the resident it implemented a process of “providing asbestos survey information as part of the Right to Buy process in March 2020” and clarified that this was correct, but “appreciated” that the process was not in place when the resident started her Right to Buy application in September 2019.
4. It noted that as part of the conveyancing process, sellers are under a duty to not to give any misrepresentation of the property in response to enquiries from a buyer’s solicitor. The landlord noted the resident’s solicitor did not submit any enquiries regarding asbestos during the purchase process but that, if they had, it would have provided the information, as it did when it received an enquiry from the resident’s solicitor in December 2020.
5. It apologised for the confusion caused by a member of staff reportedly advising the resident she could “challenge the purchase” of the property. It clarified that this was intended to mean she could seek legal advice herself if she was unhappy with the landlord’s response.
6. It noted the resident had requested a copy of the landlord’s “code of practice” for the management of asbestos in its properties as she had seen operatives from the landlord attending other neighbouring properties apparently carrying out asbestos removal and believed the same should have happened at her property. The landlord noted that it had a “management plan in place for managing asbestos in (landlord owned properties), but…this does not extend to properties sold as part of the RTB process”. It therefore could not offer any assistance with the removal of asbestos or any reimbursement for removal works the resident arranged herself.
7. If further clarified it did not have a “Code of Practice” but followed “asbestos regulations which inform our management plans, policies and procedures…applicable to (landlord)-owned or (landlord)-managed housing only.” It advised that all its compliance policies were currently “subject to exceptional review” and it would share these when they had been signed-off.
8. It noted it had sought to clarify with the resident the resolution she sought from the complaint process, but she had been reluctant to confirm this following “legal advice”. However, she had suggested that “removal of the asbestos or reimbursement for the removal” would be a positive outcome.
9. It also noted she had referred to being awarded compensation due to her family being exposed to asbestos while they were tenants at the property. However, the landlord clarified it had not seen evidence the resident or her family “would have been exposed to asbestos while you were living in your home as a…tenant” and she had not provided any evidence regarding injuries or medical issues suffered as a consequence to reported asbestos exposure. It also highlighted that the asbestos report did not recommend removal of any of the asbestos containing materials found in the property. It advised the resident to seek legal advice if she remained unhappy and that it could not provide any further advice as this would sit outside of the complaint process.
10. It advised it could not uphold the resident’s complaint and again apologised for the length of time taken to provide its response, advising that some of the delay had been caused by waiting on advice from its legal team.
The resident responded to the landlord the same day and requested her complaint be escalated to Stage Three of its procedures. She stated the landlord’s response contained “a number of mistakes”, including the landlord’s assertion that there was “no evidence of (asbestos) exposure” and reiterating that she had been advised by the landlord that she should have been sent an asbestos survey report as part of the Right to Buy process, despite this not becoming formal landlord policy until March 2020.
The landlord issued its Stage Three complaint response on 16 April 2021. It stated it understood that the resident’s concerns over the sale of the property would be a “general (local authority) issue but that her concerns over “the condition of the property while you were renting it would be a housing complaint.”
It broke its response down into three areas: whether it should have shared information “about its knowledge of the presence of asbestos (in the property) with you, at the point of sale”; whether it had “appropriately considered the maintenance and monitoring of the asbestos at your home while you lived there as a tenant”; and “whether (the landlord) should have responsibility for removing the asbestos after the property was sold.” It clarified that its “ultimate response” to this was that it did not repair “properties that it no longer has responsibility for” but it acknowledged that “if it concluded that (the landlord) did not appropriately manage the asbestos in your home whether removal of it now might form a suitable remedy.”
The landlord made the following findings:
1. Information provided at the point of sale – the landlord stated that “there is no general duty that requires house sellers to disclose to house buyers any matters that related to the physical condition of the house…being sold”. It noted it had now “elected” to share details of any asbestos reports to prospective buyers and reiterated that it would have provided a copy of the June 2019 report prior to purchase, had the resident’s solicitor asked for it. It also acknowledged the resident may be frustrated that the policy was introduced after she had already begun the Right to Buy process. However, it noted that new policies were “not routinely backdated”.
2. Management of the asbestos during the period the resident was a tenant – the landlord acknowledged the resident was “of a view that not enough was done to manage the asbestos in the property while you were renting it” and that there were “differences of opinion” regarding the matter but concluded that it had carried out an “appropriate review of the known asbestos…and…the risks were appropriately assessed”.
3. It reiterated that there was “nothing to indicate that the asbestos in your property was considered in a different way to any other property” and that, following the June 2019, the recommendations had been to “monitor the asbestos identified”. This would have meant a further survey in June 2020, but the property had been sold to the resident by this time. It also noted the surveyor deemed the identified asbestos to be in “safe condition”, not damaged and did not feel the need to recommend “repair or removal”.
4. Regarding the resident’s request for “some kind of compensation”, the landlord advised that the advice it had given her was “correct and reasonable” and that, if she felt the property had been misrepresented, she may wish to raise a case with Trading Standards. It further advised that, if she believed the landlord had erred in how it managed the asbestos while she was a tenant, she would need to “demonstrate what the loss was” and therefore may wish to seek independent advice on the matter.
5. Finally, it advised the resident of her right to refer her complaint to the Local Government and Social Care Ombudsman to clarify which aspects of her complaint may fall under their jurisdiction.
Following the completion of the landlord’s complaints procedure, the landlord contacted the resident to further address some of her concerns. It wrote to her on 6 January 2022 to “apologise…for the inconvenience caused to you” and the length of time taken to reach what the landlord stated it hoped would be a final resolution. While it reiterated it believed it had fulfilled its legal obligations to the resident, it “acknowledged the impact of the decision on your household” and advised it had “updated our policies accordingly”. As a result, it offered the resident a “gesture of goodwill” to reflect the repairs work the resident had needed to carry out and advised it had based its offer of £7,545 on the breakdown of costs she had provided. It broke the goodwill offer down as follows:
1. £2,496 for works already undertaken and paid for (£300 for electrical costs and £2,196 relating to asbestos works).
2. £4,050 for outstanding works (£2,500 for joinery, £650 for plastering and £900 for the kitchen).
3. A further £1,000 for “inconvenience/stress”.
On 1 April 2022, the landlord confirmed to this Service on 1 April 2022 that the resident had accepted its “goodwill payment” of £7,546 and this had been paid to her on 25 March 2022. However, it also noted the resident remained unhappy with its overall response and wished for this Service to continue our investigation.

Reasons

Paragraph 39 (m) of the Housing Ombudsman Scheme states that the Ombudsman will not investigate complaints which, in its opinion, “fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body”.
The Housing Ombudsman can consider complaints about how a local authority has managed its housing stock, in its role as a landlord. However, complaints about a local authority’s wider housing activities, including the sale or disposal of land on housing estates and the right to buy for tenants, do not fall within the Housing Ombudsman’s jurisdiction. They may however fall within the jurisdiction of the Local Government and Social Care Ombudsman.
After reviewing the complaint and all the information provided by both parties, it is apparent that the resident first raised concerns regarding asbestos in her home after she had already purchased the property via Right to Buy. While concerns were also raised regarding the landlord’s management of the asbestos in the property while she was a tenant, the focus of the overall complaint was regarding information provided, or not provided, by the landlord during the Right to Buy sales process. This is therefore an issue that would be more appropriately handled by the Local Government and Social Care Ombudsman and is not within the jurisdiction of the Housing Ombudsman to consider any further.
In her complaint the resident also requested compensation for the fact her family had allegedly been exposed to asbestos within the property while she was a tenant and after she had exercised the Right to Buy. It is noted the landlord disputes this and relied upon the asbestos survey done in June 2019 when stating its position that there was no evidence of risk or detriment caused to the resident by the presence of asbestos in her home, or that it had not managed the asbestos in an appropriate manner.
The Ombudsman understands the resident’s concerns about this matter. However, and as set out above, the substantive issue in this complaint is the provision of information provided during the Right to Buy process and the resident’s concerns about any risk posed to the resident and her family by the presence of asbestos in the property, arise from this complaint. As the complaint about the Right to Buy process is not within the Ombudsman’s jurisdiction to consider any further, and in addition the Ombudsman cannot issue a binding or expert view on any alleged impact on health. It is therefore recommended the resident seek further independent legal advice regarding this if she remains unhappy with the landlord’s position.
Further, regarding the resident’s concerns over how the landlord handled her request for compensation, it is noted that the landlord’s ultimate offer of compensation, made after the end of its complaint procedure, includes an award for works done and works outstanding. These were arranged by the resident after purchasing the property. As the works were not undertaken by the landlord and are therefore clearly linked to the sale of the property (having only arisen following the resident’s appointment of her own contractor in December 2020), this part of the complaint also falls outside the Ombudsman’s jurisdiction to consider any further, for the reasons set out above.
In the Ombudsman’s opinion, the issues raised within this complaint are inextricably linked with the resident’s purchase of the property and whether the landlord acted appropriately, or had any further duties to the resident, during the Right to Buy process. As such, it is recommended that the resident either contact the Local Government and Social Care Ombudsman, as she was directed to do when the landlord issued its Stage Three complaint response, or she seek further independent legal advice, particularly in relation to her concerns over the possible impact of asbestos on her and her family’s health.