Magenta Living (202112953)

REPORT

COMPLAINT 202112953

Magenta Living

9 February 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 response to reports that the resident did not receive information relating to asbestos within the property at his sign up, and the level of compensation offered by the landlord.

Background

The resident is an assured tenant of the landlord and commenced his tenancy on 2 November 2020. He lives in a one-bedroom bungalow.

Policies, procedures and agreements

Tenancy agreement:

The resident is responsible for insuring contents in the property against damage and is strongly advised to take out full contents and tenants liability insurance.
The resident must not improve, change or add to the property unless it has been agreed in writing by the landlord.
The resident must keep the inside of the property clean and in good condition, and must decorate all of the inside of the property as often as necessary to comply with this obligation.
The landlord has an obligation to replace and renew the structure and exterior of the property.

Responsive repairs and maintenance policy:

Residents must obtain written permission from the landlord if they want to make any changes or improvements to their home.
The landlord is not responsible for repairs where damage is to an item that has not been provided by the landlord, and where written permissions have not been given by the landlord.

Asbestos Safety Policy:

The policy states that additional safety measures should be undertaken before alterations are made, e.g.; the tenant arranges for relevant risk assessments to be undertaken and that work is undertaken by suitably qualified contractors.

Asbestos safety leaflet:

The leaflet states that residents should not sand, scrape, drill or break anything that may contain asbestos.

Compensation Policy:

Residents are responsible for arranging insurance for their home contents. This is their recourse in seeking to address damage to items such as furniture and belongings.

Legal Framework:

Under section 9a of the Landlord and Tenant Act 1985, the landlord had an obligation to keep the property fit for habitation in relation to hazards, including asbestos.
According to the Health and Safety Executive (HSE) in the UK, asbestos is not dangerous for the occupants if the building material is in good condition. 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.

Summary of events

Prior to the resident commencing his tenancy in November 2020, whilst the property was void, an asbestos survey was conducted on 1 September 2020 which was emailed to the landlord on 3 September 2020 and concluded:
1. Asbestos material, namely chrysotile, was found within the door panelling of the lounge cupboard. The materials were in fair condition and unlikely to generate airborne asbestos fibre during normal occupation, provided that they remained undisturbed.
2. It was recommended that the landlord continue to monitor the material by way of an asbestos management plan.
On 22 October 2020, the landlord emailed the resident with a tenancy sign up pack. The email contained 15 attachments, including an asbestos guide.
On 25 July 2021, the resident called the landlord, concerned after speaking with his neighbour that he may have sanded cupboard doors which may have contained asbestos.
The landlord requested that its asbestos services team sampled the cupboard doors in the lounge (front and back), along with any debris in and around the area. An air test was also requested by the landlord.
On 28 July 2021 the resident was informed by the landlord that results from the samples and air tests were clear.
An industrial clean was completed on 29 July 2021. The cupboard doors were removed, along with all items within the cupboard that could have been contaminated with asbestos containing material (ACM).
On 30 July 2021 the landlord gave the resident a one-off payment of £125 after he advised that all his clothes in the cupboard had been removed and he had no other clothes, other than those he was wearing.
On 11 August 2021 the resident made an official complaint to the landlord. On 16 August 2021 the landlord acknowledged the complaint via a telephone conversation with the resident which confirmed:
1. The resident had a large quantity of clothing that had been disposed of, and he would like the items replaced.
2. The resident did not think £125 was sufficient to replace the items lost but was unable to provide the landlord with a figure as to what he felt was appropriate.
3. The resident advised he was not given information at sign up relating to asbestos.
An internal email of the landlord’s on 17 August 2021 stated:
1. The asbestos specialist team (ACS) confirmed there was no legal requirement to provide the asbestos survey to the tenant.
2. As part of the sign up all prospective tenants were provided with the asbestos guidance.
3. The asbestos safety guide outlined areas ACM might be found, and the landlord should be contacted prior to the resident starting any work.
4. The tenancy agreement also stated permission should be sought before carrying out improvement work.
The landlord sent a complaint response to the resident on 26 August 2021 which stated:
1. It was sorry for the inconvenience caused to the resident by removing items from his property.
2. It would not accept liability for clothes or other items that were removed as the damage caused was not a result of a service failure by the landlord, or because of work carried out by the landlord in the property.
3. The resident was provided with an asbestos awareness leaflet at the tenancy sign up, and advised that there could be asbestos in a number of areas in the home and that he should not sand or scrape anything that may contain asbestos.
4. The landlord attended and made safe the home once notified that asbestos had been disturbed.
5. The landlord provided the resident with £125, but would not be compensating or replacing any of the items removed and the resident was advised to contact his home contents insurance company.
6. How to request a review of the decision, which would be considered to determine if further escalation was appropriate. The resident was asked to provide evidence to support a claim that the previous resolution was inadequate.
The landlord’s internal systems noted that the resident requested an appeal of its decision on 28 August 2021 on the basis that he did not receive the ‘asbestos in your home’ leaflet at his sign up.
The resident also made a request for items that were removed from his property to be returned to him. The landlord sought independent advice from the asbestos specialist team who advised the landlord against returning items that had been removed in case they contained asbestos fibres, which could not be cleaned.
On 3 September 2021 the landlord concluded that the resident’s appeal did not warrant escalation for review by Senior Management. The basis of the complaint was that the resident did not receive the asbestos survey during his sign up. The landlord reiterated that the document was emailed to the resident and if there was an unforeseen issue that caused the resident not to receive the email, it was outside of the landlord’s control. The resident was informed of his rights to contact this Service if he remained dissatisfied.
In corresponding with this Service, the landlord agreed to mediation in the hope of resolving the matter. On 2 December 2021, this Service emailed the landlord, advising the resident sought compensation of £2000, which he believed would cover the cost of replacing his belongings.
On 8 December 2021, the landlord emailed this Service, confirming its position relating to the resident’s request. It advised that it would offer the resident an additional £250 towards the replacement of items that were removed from his property and confirmed the following:
The resident was unable to provide an estimate for the total cost of goods which were removed from the property, but did provide costs on some of the items when replaced for new.
The landlord had met all legal obligations regarding asbestos awareness at the start of the tenancy, and the repairs and maintenance policy states that tenants should consult with the landlord before starting improvements.
The landlord advised the resident to contact his home contents insurers and enquire about making a claim, and it was the landlord’s hope that the additional £250 would cover any excess payment that may be required of the tenant, allowing him to claim for the full value of the items without suffering any financial impact.
The resident informed this Service in a call of 17 December 2021 that he was not happy with the additional £250 offered by the landlord. He was advised that residents are usually expected to claim for items under their contents insurance and that the landlord removed all items which may have been contaminated. The resident confirmed he does not have contents insurance. The resident clarified during the call that he had no issue with how the landlord had responded to the presence of asbestos but disputed receiving the information on asbestos at the start of the tenancy. He stated that the leaflet the landlord sent him stated that there ‘may’ be asbestos.

Assessment and findings

The landlord appropriately obtained an asbestos survey, prior to the property being let. The survey identified asbestos within the lounge cupboard doors and concluded that it was unlikely to generate airborne asbestos fibre during normal occupation. It correctly set out a number of actions it would take after the survey, including recording and managing the asbestos which applied to items that were in good condition, sealed, and not in a vulnerable position.
The landlord does not have a legal obligation to inform residents if asbestos is present in their home. Undamaged asbestos can often be left in situ as it poses minimal risk to health, and the presence of asbestos in a domestic property does not alone constitute a repair issue. However, if it is damaged or its condition has deteriorated, then the landlord should act to address this. The repairs handbook explained the nature of asbestos and that materials containing asbestos were safe and would not be harmful, as long as they were intact and not damaged or tampered with in any way.
After being notified by the resident that he had sanded doors which may have contained asbestos, the landlord acted swiftly and appropriately, by organising a survey and an air test to be completed. The landlord relayed the results of both the survey and the air test to the resident within 3 days of his initial call.
It was appropriate that the landlord ensured that any items or belongings in the cupboard that could have been contaminated with ACM were removed in line with health and safety guidance. The landlord appropriately sought independent specialist advice regarding returning the resident’s belongings, and reasonably relied upon this advice to conclude that the resident’s clothing could not be returned, in case it contained ACM which could not be cleaned.
When the resident made an initial complaint to the landlord, he disputed receiving information relating to asbestos within his sign-up pack and disputed being made aware that he should not sand doors as they could contain asbestos.
This Service has been provided with an email sent from the landlord to the resident on 22 October 2020, which included an asbestos pdf attachment. For that reason, it is possible to conclude that the landlord sent the information relating to asbestos. However, it is not known whether the resident received the email and all attachments. That the resident complained that information was not received indicates that he did not read the information supplied. The evidence shows that the landlord acted appropriately by providing the relevant information to the resident, and while the resident had stated that he did not receive it, that does not indicate a failing on the part of the landlord.
By signing the tenancy agreement, the resident was obliged to decorate the property as often as necessary to keep the inside of the property in good condition. It was not unreasonable for the resident to consider that this may include decoration of internal cupboard doors. The asbestos guide, which the resident states he did not receive, says not to sand, scrape or break anything that “you may think contains asbestos”. It is not known whether, had he read this information, the resident’s actions would have been different and he would have avoided sanding the cupboard doors. A failing cannot therefore be found in the standard of information provided to the resident by the landlord. Nonetheless, it is recommended that the landlord considers whether current guidance can be improved beyond residents being asked to avoid areas which they “may think” contain asbestos, and whether information or guidance provided could be more explicit in identifying potential areas of ACM.
A recommendation has also been made for the landlord to consider whether the asbestos guidance leaflet is appropriately highlighted in the bundle of documents of various significance which is sent to residents following sign-up. This did not cause adverse effect in this case as the resident has stated that information on asbestos was not received.
Both the tenancy agreement and the landlord’s compensation policy state that residents are responsible for insuring contents in their home as this is the resident’s recourse in seeking to address damage to items such as furniture and belongings. The Ombudsman’s guidance on complaint issues involving insurance states that if a complainant is unable to evidence the level of damages they are claiming, it may be reasonable for a landlord to ask that the complainant’s insurer determine the claim, which is what the landlord did in this case. The landlord’s policy also states that it will acknowledge where a failure on its part is proven to cause the resident to suffer loss or detriment. Payments to residents for loss will be considered, except in circumstances beyond the control of the organisation.
The landlord’s compensation policy further states that proof of costs incurred would normally be required for compensation payments. In this case, the landlord exercised its discretion in its approach to the loss of items, given that the resident was not able to provide a list of expenses, other than costs of replacing old for new. Its offer of compensation in recognition of the events experienced by the resident, and to cover any excess for a potential insurance claim, was reasonable in the circumstances of the case.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of the landlord’s response to reports that the resident did not receive information relating to asbestos within the property at his sign up.

Reasons

The landlord acted appropriately in relation to the residents reports of asbestos within his property. Its offer of compensation was reasonable in the circumstances.

Recommendations

The landlord is recommended to:

Consider the way in which sign-up information is sent to residents, and whether providing a contents page or index would provide easy access to key information.
Consider whether current guidance can be improved so that residents avoid disturbing areas which they “may think” contain asbestos. This may include consideration of whether information or guidance could be more explicit in identifying potential areas of ACM, or providing a copy of the asbestos risk assessment for properties where ACM is contained in areas which may be subject to redecoration.