Sandwell Metropolitan Borough Council (202115332)

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REPORT

COMPLAINT 202115332

Sandwell Metropolitan Borough Council

10 June 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:
    1. The landlord’s response to reports of asbestos in the property.
    2. The landlord’s handling of the associated complaint.

Background

  1. The resident has lived in a one-bedroom low rise flat in a block under a secure tenancy agreement since 2004. The landlord has recorded no vulnerabilities for the resident, although repair logs in 2011 and 2014 record that he has disabilities.
  2. In 2013 and 2014, the resident had reported concerns about black dust coming into his property via the bathroom fan, which he believed to be asbestos. He was advised at the time that the black dust was not asbestos (which would be white), but rather, dust from the fan pipe.
  3. The same concern was reported on 8 September 2021 after an inspector had said the previous work was ‘shoddy’, but safe. The resident chased this matter in September 2021, expressing dissatisfaction that the landlord had only removed part of the asbestos piping and had left this exposed for (approximately) 10 years. He was verbally advised that the complaint would not be responded to as it was out of time, but that an inspection would be undertaken on 14 October 2021. The resident requested that the landlord put this in writing, which it refused.
  4. Following contact from this Service, a stage one complaint was logged on 7 October 2021 and responded to on 19 October 2021. The landlord explained that as it held no records of the pipework going back 10 years, an inspection had been arranged for 11 October 2021, but the resident was not at home. The resident was asked to make contact to re-arrange this inspection and it appears that this took place on 3 November 2021.
  5. With further dissatisfaction with the inspector’s conclusion that there was no asbestos risk, and a subsequent refusal to remove the pipe, however, the resident escalated his complaint on 4 November 2021. This Service notes that a further investigation took place on 9 November 2021 in which the pipe ducting was again judged to be adequate. The landlord therefore shared these findings in its stage two response on 12 November 2021. It advised the resident that if he remained dissatisfied, he could make contact with a ‘designated person’ to further pursue his complaint. Following contact from this Service, the landlord sent a corrected final response letter (on 9 December 2021) advising the resident of his right to approach this Service.
  6. The resident has advised this Service that he remains dissatisfied about this issue and does not trust that the pipe was / is safe. He has explained that he raised several complaints about this matter over the previous years, which the landlord had not responded to. He has therefore requested the removal of the pipe and compensation for negligence.

Assessment and findings

The landlord’s response to reports of asbestos in the property

  1. The landlord’s ‘repairs and maintenance to your home’ handbook says that urgent repairs will be responded to within 3 days and small non urgent repairs will be responded to within 25 days. Page 7 says that, on occasion, work of a specialist nature such as asbestos removal ‘will take a little longer than 30 days.’
  2. In this instance, prompt inspections of the asbestos pipe were made on several occasions, enabling the landlord to satisfy for itself and this Service that no repair was required. As this Service would expect, the landlord engaged expert personnel to confirm the safety of the asbestos / pipe and communicated this to the resident in response to his concerns. This was appropriate.
  3. What’s more, given the nature of the issue, and the resident’s clear concerns, it was reasonable that the landlord agreed to undertake more than one inspection. In the absence of evidence demonstrating that there was a risk to the resident, or that any follow-on works were required to treat the asbestos, this Service is unable to determine that there was any maladministration. Therefore, no order of compensation has been made.
  4. It is also beyond the remit of this Service to establish whether there was negligence. This is as negligence is a legal matter which is better determined by the courts. As such, if the resident wishes to pursue this, he may wish to consider obtaining legal advice.

The landlord’s handling of the associated complaint.

  1. The landlord’s complaint procedure is silent on the subject of timescales in which to make a complaint. However, this Service would not normally expect a landlord to investigate a matter which happened ten years ago. This is because the Ombudsman recognises that as matters become historic, it is increasingly difficult to rely on the availability and accuracy of records to establish what did or did not take place. A landlord may also decide not to maintain or retain records for such a period of time.
  2. It was therefore not unreasonable, given the absence of a formal complaint until September 2021, that the landlord refused to investigate the handling of the asbestos repair approximately ten years prior. In the Ombudsman’s view, any dissatisfaction with a landlord’s service should be raised within six months of the issue occurring and pursued, via the landlord’s complaints process, if a resident remains dissatisfied.
  3. While the resident has advised this Service that he had raised complaints previously without response, this Service is unable to confirm this in the absence of evidence. What’s more, if the resident had experienced a lack of response from the landlord, it would have been reasonable for him to have brought his complaint to this Service for investigation and / or intervention at the time. It does not appear that this was done, however.
  4. The Ombudsman does note, nevertheless, that the landlord’s initial refusal to offer the resident a formal response was inappropriate. This should have been issued soon after receiving the resident’s complaint and set out the reasons why it had taken the decision it had. It was not until this Service’s intervention that the landlord offered this, delaying the complaint process somewhat.
  5. It is also noted that the landlord’s stage two complaint response failed to properly advise the resident of his right to pursue his complaint with this Service. The landlord subsequently had to offer a further response, providing the resident with the correct information. Although this had little impact on the resident – as he was already in contact with this Service – the Ombudsman has been highlighted this as the landlord must ensure that moving forward, the correct advice is given to complainants the first-time round.
  6. Overall, the Ombudsman is satisfied that the delays caused by the landlord’s oversights resulted in little detriment to the resident, and his ability to bring his complaint to this Service. The Ombudsman has, however, made recommendations below for the landlord to improve its service moving forward.

Determination

  1. In accordance with paragraph 54 of the Scheme there was:
    1. No maladministration in respect of the landlord’s response to reports of asbestos in the property.
    2. No maladministration in respect of the landlord’s handling of the associated complaint.

Recommendations

  1. The landlord should correct its complaint’s policy so that residents are aware of their right to approach the Ombudsman directly, eight weeks after the final complaint response letter, and without having to first approach a Designated Person. The landlord should also remind relevant staff of this, to avoid any future issues.
  2. The landlord should revisit this Service’s Complaint Handling Code (available here) and share best practices with its staff to ensure that complaints are responded to appropriately following receipt.