Stevenage Borough Council (202119525)

REPORT

COMPLAINT 202119525

Stevenage Borough Council

19 May 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 the resident’s concerns following the disturbance of asbestos during works to a storage cupboard.

Background and summary of events

The resident is a leaseholder of the landlord. The property is a first floor flat within a block. On the landing next to the resident’s flat, is an external storage cupboard used exclusively by the resident. The cupboard is deemed independent of the communal area and forms part of the property the resident owns.
The landlord states that as it was obligated to enforce the replacement of the cupboards doors to comply with building regulations, it incorporated the replacement of the cupboard doors and frames within the major works it was completing to the block. The landlord’s contractor appointed its own subcontractor to complete the door replacement works.
The work to replace the cupboard doors and frames started on 15 March 2021. While the operative proceeded to remove the existing frame from the cupboard, the resident raised a concern to him about the presence of asbestos in the cupboard. The works were immediately stopped but by then, a piece of debris had come away from the insulation board the frame was attached to.
On the same day, a licensed asbestos subcontractor was instructed to attend and make safe the area. During the asbestos contractors visit, the resident was asked to leave the property. The asbestos contractor took the debris from the insulation board as a sample to test for asbestos. On 17 March 2021, the sample was confirmed to have asbestos containing material (ACM).
Between 16 and 17 March 2021, the resident asked the landlord for the asbestos report for the block and an update on the test taken of the debris sample. The landlord provided this by 18 March 2021. The resident also requested a site meeting with the landlord to discuss the work that had taken place on 15 March 2021. Specifically, he reported that a piece of asbestos was missing from a panel on the back of the cupboard door and that debris was left in the cupboard.
Between 18 and 23 March 2021, the parties were in contact about the asbestos removal work. The resident confirmed he wanted the landlord’s contractor to do the asbestos removal work and noted that if he needed to move for the work to take place, he wanted compensation. He also advised that the asbestos removal work should be included within his service charge estimate for the door renewal work. The asbestos contractor attended on 22 March 2021, to scope the works in order to provide the landlord with a quote. During the visit, further samples were collected from the ceiling and panels within the cupboard. The following day, sample testing confirmed they contained asbestos.
On 22 March 2021, the landlord’s contractor prepared an incident report relating to the events on 15 March 2021. This report stated that the asbestos contractor made the area safe, removed the debris from the disturbed insulation board and sealed the area with ET150, an asbestos encapsulation paint.
The landlord met the resident on 23 March 2021, to discuss the work. After meeting with the resident, it arranged for the asbestos contractor to attend again on 26 March 2021 as it found that debris had been left in the cupboard. When the asbestos contractor attended, it completed an environmental clean and air monitoring test, the outcome of which was deemed satisfactory. On the same day, an inspector of Health and Safety, from the Health and Safety Executive (HSE) also visit the property and completed an assessment.
After the environmental clean was completed, the resident emailed the landlord reiterating his dissatisfaction with the way the cupboard was left on 15 March 2021. He also expressed that he was not happy only one sample was taken on the day. He asked that the landlord send him the result of samples he said were taken on 26 March 2021 and the report of the work the operative completed on 15 March 2021, before they were stopped.
On 1 April 2021, the landlord provided the resident with:
1. Two certificates from the test of the samples, one of which was taken from the site on 26 March 2021. This Service has not seen the certificate for the sample taken from the site on 26 March 2021.
2. The contractor’s incident report dated 22 March 2021, which included information of what work the operative did before the works to the cupboard door were stopped.
3. The report from the air test completed on 26 March 2021.
In response, the resident stated that he would be compiling his complaint. He said that he had not been given notice of the exposure to the asbestos found and believed an air test should have been completed on the day of the incident. He advised that if fibres were still present after the environmental clean took place several days later, the presence of the fibres on the day of the incident would have been higher. He advised that had he not stopped the operative, he and his family would have been at serious risk and the work completed thus far, had caused him stress and worry of exposure to asbestos. The resident also questioned why in the contractor’s incident report, only one area of damage to the cupboard was noted, when two areas had been damaged. He did not believe the second area had been sealed and asked the landlord to confirm whether it was.
The resident raised a stage one complaint to the landlord on the 11 April 2021. He said that the health and safety of his and his neighbour’s family had been risk, as they had been exposed to asbestos. He said this was because:
1. They were not informed that the door replacement work would involve the removal of asbestos.
2. The correct procedure for the removal of asbestos was not implemented.
3. The subcontractor appointed to do the door replacement work was not suitably qualified to remove asbestos.
4. The area was left with asbestos debris and the second section was not encapsulated within the cupboard.
In addition, the resident disagreed with the statements within the contractor’s incident report, that cupboard area had been made safe and left free of debris. He asked to explain if this was the case then, why debris had been left in the cupboard. In addition, he asked why no air test was carried out on the day of the incident, to confirm the area was safe. He reraised the question about why the incident report had not included a second area that was damaged.
Between the 15 and 20 April 2021, the parties spoke about the outcomes the resident sought, as the landlord wanted this information before it progressed the complaint. The resident confirmed that he was seeking £300 for the loss of the cupboard. For what he believed was asbestos exposure, he wanted the landlord to pay the total sum of the outstanding balance of the major works and a separate award of £10,000.
The resident added further points to his complaint on 22 April 2021, about the environmental clean team who attended. He stated that the team did not take samples from areas the landlord had asked them to and did not wipe his things down and instead, only hoovered his things and put them back.
The asbestos contractor attended on 28 April 2021 to complete the removal of the asbestos insulation board to the ceiling and the backing panels within the cupboard. This was followed by a four stage clearance which included, a preliminary check of the site, a visual inspection, clearance air monitoring and an assessment of the site for reoccupation. Following the clearance, the cupboard area was classed as safe for reoccupation.
The landlord informed the resident that on 4 May 2021, that it aimed to respond that day however would need to extend this deadline to 11 May 2021 and apologised. The resident questioned why the deadline had been extended and the landlord explained that it was sometimes not possible to reach the target set as it wanted to ensure that it provided a comprehensive response.
On 11 May 2021, the HSE wrote to the landlord and confirmed that following its investigation, it identified contraventions of health and safety law in the way the landlord managed the cupboard door replacement work.
The landlord provided its stage one response to the resident’s complaint on 11 May. It responded to the points raised by the resident in turn. It explained an asbestos refurbishment and demolition (R&D) survey completed in 2019 ahead of the major works, did not include the cupboard as it was deemed inaccessible at the time of the survey. It acknowledged that there was a discrepancy in identifying that the cupboard had not been part of the 2019 survey and the contractor not checking the cupboard for asbestos prior to starting the work. The landlord explained that it instructed its contractor, going forward, to ensure that it gains access to do an asbestos survey of any area deemed inaccessible during a R&D survey before it completes any work.
The landlord confirmed that the contractor who attended to do the door replacement was not qualified to remove asbestos, as they were not appointed for the asbestos removal work. It confirmed the operative in question was no longer working on its contract with the contractor.
In relation to the debris left after the work on 15 March 2021, the landlord confirmed that the site visit on 23 March 2021, found the debris was not fully cleared by the asbestos contractor. It noted that since then, it inspected the work completed on 28 April 2021 and further questions had been raised about the work. The landlord said as a result of this, it instructed its contractor to remove the asbestos subcontractor from the contract with the landlord.
When explaining the actions taken once the asbestos had been found, the landlord stated that an environmental clean was completed on the day of the incident and said that the subsequent air test it carried out, found the asbestos fibre composition to be low. It explained that an air test was not completed on the day of the incident because there was no requirement for this. In relation to the resident’s point that a second area was damaged, the landlord advised that this was part of an ongoing investigation with its contractor, as there was no mention of a second area in any of the reports submitted by the contractor or its subcontractor. The landlord confirmed the matter of samples not being taken as requested, was also being investigated.
The resident also raised a question about why the landlord had not informed its contractor about the asbestos when it had a record from 2015, that the cupboard should have been treated as having ACM. The landlord’s response to this was that the information from 2015 was historical and would not have been appropriate to rely on as evidence of the location of asbestos for the purpose of the door replacement works.
Regarding the outcomes sought by the resident, the landlord offered the resident £324 for the period of 9 weeks the cupboard was out of use. It based this amount on hire charges from local storage companies for storage units of a similar size. In response to the resident’s compensation request for the suspected asbestos exposure, the landlord said that it would not comment on this as it was awaiting the outcome of the Ombudsman’s investigation into another complaint the resident made (case reference 202009309). The resident’s complaint considered by the Ombudsman under reference 202009309 was in relation to concerns he raised about asbestos exposure from works within the communal area. The works were completed by another licenced asbestos subcontractor.
Thelandlord provided the resident with documentation from the asbestos removal works completed on 28 April 2021. This included, the waste consignment notes, the air monitoring report and certificate of reoccupation.
On 11 and 12 May 2021, the resident responded to the landlord’s stage one response and asked if it had evidence of the environmental clean it said was carried out on 15 March 2021. He also highlighted his expectation that the landlord deal with his compensation claim separate to his other complaint and asked the landlord to provide the outcome of its investigation with its contractor.The landlord responded to the resident that it would not pay the sum of the major works or the £10,000 requested.
On 1 June 2021, the landlord provided the outcome of its investigation with its contractor that it mentioned within its stage one response. It confirmed that an environmental clean was not completed on 15 March 2021, as it stated in the stage one response. It said that the second area the resident said was left exposed on 15 March 2021, was not identified by the asbestos removal team during visits to the property and the area, therefore, was not encapsulated. It noted based on advice it had received, that it was unlikely that the small area of damage in question would have posed any risk, as the cupboard was not in use and the door that had been removed was refitted. It reiterated that the asbestos subcontractor was no longer working on the contract.
In relation to the concern about the way the environmental clean was completed, the landlord confirmed that the wiping down of the resident’s items was not carried out. It confirmed what steps should have been taken, in accordance with the HSE requirements, to clean the area. It reiterated what measures it would be implementing in the future to ensure that the incident did not reoccur, as set out in the stage one response.
On 1 July 2021, the resident requested an escalation of the complaint to stage two. In this, he raised several questions some of which were a repetition of those raised in the stage one, others were comments in response to the landlord’s email of 1 June 2021. The resident said he did not feel the questions he answered had been responded to honestly and requested an explanation as to why the landlord and its contractor had breached legislation. He stated that in doing so, the landlord exposed his family to asbestos. He asked questions about why after receiving an advisory note from HSE, the landlord did not carry out the work in a safely manner and why on the date of the incident, the cupboard was handed back over to him with debris and fibres airborne. He advised that he considered the £10,000 compensation sought a satisfactory amount for his time and his family’s health.
The landlord acknowledged the stage two complaint on the same day and advised it would provide a response by 21 July 2021. It did not do so and the resident chased it on 26 and 29 July 2021.
The landlord responded on 29 July 2021, apologised for the delay and its lack of contact regarding this. It advised that due to change in staff roles, it was aiming to have the response by 4 August 2021.
The landlord provided its stage two response to the resident on 4 August 2021. It apologised for the delay in doing so. It responded to questions and comments the resident raised within its stage two, in turn. It relayed the actions it had taken in response to the incident and the future actions it had asked its contractor to do to ensure that the necessary asbestos surveys were completed before any works. It apologised if the resident felt that his questions had not been answered honestly but said it had answered him to the best of its knowledge. In response to the question why the cupboard had been handed back, the landlord advised that it had nothing further to add than what it had said in its previous responses.
The resident went back to the landlord on 18 August 2021, repeating his questions about why it incorrectly stated in its stage one response that an environmental clen was done on 15 March 2021, and why the cupboard was handed back to him on the same day of the incident. He also reiterated the HSE inspector’s findings, made further comments about the way in which the asbestos work was completed from 15 March 2021 and explained that his request for £10,000 stood. The landlord responded on 2 September 2021 that it could not add anything further to its response and therefore would not progress the complaint to the third stage of its complaints procedure. It responded to the question about the incorrect statement regarding the environmental clean being carried out on 15 March 2021 and apologised that the wrong information was relayed. In addition, it confirmed that the keys to the cupboard should not have been returned to the resident until the asbestos removal works were completed.
The resident referred the complaint to this Service on 11 November 2021.

Assessment and findings

Throughout his complaint, the resident raised concerns that the landlord’s contractors did not deal with the asbestos work appropriately, leaving his family at risk of exposure.
The HSE has undertaken an investigation into whether health and safety risks were being appropriately managed by the landlord. In its response to the landlord in May 2021, it confirmed that it had identified significant contraventions of health and safety law. It noted that the landlord had the sufficient information to advice its contractor that ACM was present in the cupboard and that removal would have been required before the works started. It said that the landlord should review its planning, management and monitoring of projects and introduce improvements to prevent the recurrence.
The Ombudsman can not therefore, consider how the asbestos works were carried out and whether this was dealt with appropriately as this has already been considered by the HSE.
Under paragraph 39(i) of the Housing Ombudsman Scheme, the Ombudsman will not consider complaints which “concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure. The resident has referred to the impact of the asbestos work on his and his family’s health. The Ombudsman cannot draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This would be more usually dealt with as a personal injury claim through the courts. Nonetheless, consideration has been given to the general distress and inconvenience which the situation may have caused the resident.
Our role is to determine whether the landlord responded appropriately to the resident’s concern about the asbestos work and his subsequent complaint.
The resident showed the landlord during its visit on 23 March 2021, the debris that had been left after the asbestos contractor attended on 15 March 2021. He also mentioned before the visit took place, that there had been a second area in the cupboard he believed had not been sealed. Both issues resulted in his concern that he had been exposed to asbestos. After attending the site on 23 March 2021, the actions the landlord took to arrange an environmental clean and air test were appropriate. The environmental clean was necessary to address the debris left and the air test was able to determine the extent of the asbestos fibres present. At the time the test was taken, it was found that the amount of fibres present was within reasonable levels.
It is recognised that the resident is unhappy that the air test was not completed on the day of the incident. The landlord has explained that there was no requirement for it to do so. Its statement is supported by the fact that in its asbestos policy, there is no requirement for it to do an air test in instances where there has been localised damage of an insulation board, as there was in this case. The policy also notes that localised damage to insulation board is considered ‘slight damage’ with low levels of exposure likely. The landlord explained to the resident that it believed that it was unlikely the area of damage in question posed any additional risk, because the cupboard was not in use and the door had been refit. It was reasonable to base this conclusion on the information it had about the way the site was left and the information within its asbestos policy.
The landlord investigated with its contractor, the questions the resident raised about the works the asbestos contractor completed. It was able to confirm in its stage one response and its follow up response on 1 June 2021, what the asbestos contractor did and did not do when it attended. It confirmed that in light of the findings that the asbestos contractor had not completed works as expected during visits, it requested the subcontractor be removed and not allocated any further work for the landlord. The decision was appropriate given the issues the landlord found with how works were completed between 15 March and 28 April.
The resident requested the reports following the various visits carried out by the landlord’s contractor and their asbestos contractor between 15 March and 28 April 2021. The landlord provided all the reports he requested within a reasonable period of the requests. When the resident raised questions about the information the landlord provided, particularly when he queried the contents of the contractor’s incident report, the landlord raised this with its contractor as necessary and relayed the information to the resident.
When the resident raised his complaint stating that he and his family had been exposed to asbestos, he provided various points to support why he felt this and indicated that he disputed the contractor’s claim that area was made safe and free of debris by the asbestos contractor, on 15 March 2021.
In response to the complaint, the landlord responded to all the points he raised about why he felt he was exposed to asbestos. It explained that its asbestos refurbishment and demolition survey had not included the cupboard prior to the start of the work and what actions it would take going forward, to avoid the oversight in identifying the presence of asbestos in future.
While the landlord did not have an obligation to retain the asbestos register for the cupboard as it is was part of the resident’s property, it took responsibility for the door replacement work. Despite this is did not recognise in advance of the work, the need for an asbestos survey of the area.
Within its complaint responses, as well as providing the relevant reports, the landlord clearly explained the actions taken to remove the asbestos. It incorrectly stated in its stage one response that an environmental clean was completed on 15 March 2021 but it later admitted this was not correct and apologised for the error in stating this.
The landlord offered compensation for the resident’s loss of the use of the cupboard, in line with its compensation policy, which explains that it can consider compensation where there has been a loss of facilities. In this case, the resident lost the use of his storage area for a total of nine weeks from 15 March 2021 until the landlord replaced the ceiling and panels it removed. The landlord’s offer of £324 is considered proportionate as the landlord calculated this based on the cost of storage hire for a space of a similar size for the same period.
Regarding the landlord’s position in respect of the cost of the major works, its decision to not remove the major works bill appropriate. The resident in accordance with his lease, it obliged to pay for works carried out by the landlord. Regardless of when it the asbestos was found, the work to remove this was required for the door replacement work and therefore would be considered part of the overall work.
The landlord’s responses to the complaints at stages one and two, were not in line with the timeframes set out in its policy. At stage one, it is expected that it provides a response within 10 working days. In this case, it provided the stage one response in 21 working days. But it kept the resident aware of the delay and openly answered his questions about why its response was delayed. At stage two, the landlord did not respond until 25 working days later, later than the 15 working day timeframe set in its policy. While waiting for its response, the resident had to chase it before he was informed of a revised response date of 4 August 2021. The landlord apologised in its stage two response for the delay in responding, however, an award of compensation in addition should be made to the resident for his time pursuing the stage two response.
The landlord has demonstrated fairness in the way it responded to the resident’s concerns, as it has thoroughly investigated the complaint and answered the questions he raised. The landlord has also demonstrated its learning from the complaint and shared with the resident, what actions it decided to take with its contractors to avoid a reoccurrence of the incident.
Althoughthe landlord considered compensation for the resident’s loss of the cupboard while the works were ongoing, it has not considered any redress in recognition of the impact the incident had on the resident. This includes the disruption caused to the resident as a result of having to leave the property without notice, on 15 March 2021 and the fact that the asbestos contractor was found to have not properly cleared the debris from the cupboard and was confirmed to have left a disturbed area unsealed. The debris was eventually cleared 11 days later but, in this period, the resident was not provided with any reassurance that the area was safe. The landlord also did not consider any compensation for its failure to communicate with the resident about the delay in the stage two response.
Where there has been a failure by the landlord that has adversely affected the resident and the landlord has failed to address the detriment, the Ombudsman considers redress between £100 and £600 reasonable. In this case, the landlord has offered compensation for the loss of the cupboard but not for the distress and inconvenience to the resident as a result of the standard of works carried out by the asbestos contractor. Given the time taken for the area in question to be cleaned properly and the distress caused to the resident in this 11 day period, an award of £250 appropriate.
Separately, the landlord should award the resident £50 for its failure to inform him of the delay in the provision of its stage two response.

Determination (decision)

In accordance with paragraph 52 of the Scheme, there was maladministration by the landlord in its response to the resident’s concerns, following the disturbance of asbestos during works to a storage cupboard.

Reasons

The landlord provided a thorough and informed response to the resident’s complaint. It recognised that there were issues in the way the asbestos contractor completed the work and confirmed the decisions it made in relation to its relationship with the contractor, on the basis of its investigation findings. The landlord also considered compensation for the resident’s loss of use of the cupboard.
However, the landlord did not consider the detriment the asbestos work had on the resident and how this contributed to concerns he had been exposed to asbestos. While the landlord has tried to explain that the exposure was likely to be very minimal, it should have nonetheless offered compensation for the inconvenience the resident experienced as a result of the failure in the way the asbestos work had been dealt with.

Orders and recommendations

This service is aware that the payment of £324 the landlord offered within its complaint response, has been made. In addition to this, within four weeks it is ordered that the landlord pay the resident £300 comprising of:
1. £250 for the distress and inconvenience caused to the resident as a result of the asbestos removal work.
2. £50 for the lack of communication regarding the delay in the provision of the stage two response.