The Guinness Partnership Limited (202206386)

REPORT

COMPLAINT 202206386

Guinness Housing Association Limited

8 June 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 resident has complained about the following:
1. The landlord’s management of asbestos in the property A.
2. The landlord’s decision not to allow the resident to remain in the decant accommodation.

Background and summary of events

The resident is an assured tenant of the property, a mid-terrace property with three bedrooms (property A). The tenancy commenced on 22 May 2006. The landlord obtained a possession order on 9 May 2018 which was suspended on the terms that the resident pay the weekly rent plus £5.63 per week.
The resident moved to the decant property in April 2021 as a temporary decant to allow the landlord to remove/repair asbestos in the textured covering of the ceilings. Her complaint to the Ombudsman refers to her uncertainty that property A is safe as not all of the ceilings appear to have been removed. She has provided photographs to show the presence of a small hole in the ceiling which she believes is evidence that the ceiling has not been removed or skimmed.
The landlord has provided the repairs log for property A from January 2018 – August 2022. This shows that works to remove the bathroom ceiling were initially identified as needed in February 2019, following reports from the resident that the bathroom was damp and covered in mould. Further jobs were raised on 1 March 2019 to reinstate the bathroom ceiling following the removal of asbestos ceiling and an air test on 16 April 2019. It does not appear that these works were undertaken.
A roof leak in December 2021 caused damage throughout the property. At this time there were threats of legal proceedings issued by both parties: in relation to disrepair at property A by the resident; and eviction due to non-payment of rent and breach of the suspended possession order by the landlord. No documentation relating to either claim has been provided to the Ombudsman and no detail is included as part of this investigation. There is evidence that access and engagement were problematic, in part relating to the potential legal proceedings. An earlier complaint was discussed but was not pursued as the resident informed the landlord, she would refer the matter to her solicitor.
The landlord undertook an inspection and produced a report dated 10 December 2021 identifying the works required. This included work to the textured coating of the ceilings in the living room, kitchen, bathroom, landing and two bedrooms which had been confirmed as containing asbestos. The inspector advised the resident that she and her family would need to be decanted to an equivalent size property and that this was likely to take place in January. The resident contacted the landlord on 14 December 2020 asking for more details as to how this would work. Further telephone calls took place, and the landlord referred the resident to its support team in light of her arrears and benefit difficulties.
The landlord wrote to the resident on 11 January 2021 following a viewing of a prospective decant property. This letter confirmed that several repairs were needed at property A, which required the resident to move out whilst these were undertaken. The letter confirmed that the resident had viewed the property and had agreed that it would meet the needs of the family. However, the resident had since contacted the landlord and advised that she did not wish to move to the decant property as she had concerns about moving from a village to a town in the middle of a pandemic. The landlord explained that the letting of property was allowed to go ahead, and that it would arrange a removal van for her to make this easier and to limit the number of people she would come into contact.
The landlord asked the resident, again, to consider the risks of staying in property A against the risk of decanting and to confirm her final decision to it by the following day. She responded the following day, asking what the alternative options were if she did not move to the decant property. She did not move to the offered decant property and then made a complaint about the behaviour of electrical contractors who attended property A. This does not appear to have been pursued but may have formed part of the complaint referred to the resident’s solicitor.
The asbestos works were postponed, pending the location of a suitable vacant decant property for the resident and her family. The resident was unhappy with this delay.
The landlord located a further decant property on 14 April 2021 and the resident moved in. She was concerned that the gas was capped, and no safety certificate had been issued. She informed the landlord that she was considering returning the keys and moving back to property A. The outcome of this is not known and no logs of repairs at the decant property have been provided as part of this investigation.
By July 2021, the works to property A had been completed and it was ready for the family to return. A telephone note of a conversation with the resident stated that she was unhappy with this as she did not believe the works had been completed to a suitable standard. She believed that the ceilings needed to be removed, whereas this had only happened in the bathroom. The other ceilings, the note stated, had just been skimmed. The landlord had conducted an air test, but this had only evaluated the air in the bathroom, not the other rooms. She was concerned that she was being asked to move her family back into a house with asbestos.
Given the resident’s concerns, the landlord arranged for a further air test to be undertaken of nine samples from property A. All were found to be within the permitted range of the Health and Safety Executive.
The resident was clear that she still did not wish to return to property A. An email of 13 August 2021 asks why the family could not stay permanently at the decant property and this was followed on the 18 August by a further email stating that she did not believe the repairs had been fully completed. The landlord explained that she would not qualify for a transfer under its policy due to substantial rent arrears and a suspended possession order. It confirmed that a notice terminating the licence at the decant property would be delivered shortly.
The resident continued to dispute the safety of property A and denied that she had been served with a notice terminating the licence. The landlord responded on 27 August 2021 explaining that she would need to return to property A in September and therefore the keys had been hand delivered to her. The notice terminating the tenancy referred to the licence agreement and confirmed that the licence would be terminated as the resident’s original home was available for re-occupation. In relation to the asbestos concerns, the landlord repeated that the air test had confirmed that property A was safe.
The dispute continued, with the resident refusing to return or visit the property until the landlord had provided a report showing how the asbestos was removed. The landlord served a pre-legal action notice letter advising that it would commence legal action if she continued to refuse to leave the decant property.
The resident indicated that she was intending to make a formal complaint in March 2022. The precise date of the complaint is not clear, and the landlord was unsure whether to deal with the matter through its complaints process or via the legal proceedings. Following a conversation with the resident on 11 May 2022 it sent its response at stage 1 of the complaint’s procedure on 17 May 2022.
The landlord acknowledged that the resident was settled at the decant property and believed the decision not to allow her to remain there was unfair. It also noted that she had safety concerns regarding property A.
The letter explained the reason for the decant (to remove the asbestos). It explained it employed a contractor who is licensed with the Health and Safety Executive. They sealed off the area containing the asbestos with an air-tight closure and secured the material under the Waste Management Licensing regulations. As an additional safety check to offer reassurance, it had also completed an air check following the completion of the asbestos removal. All work was done under the Control of Asbestos regulations 2012.
In relation to the request to remain in the decant property, the landlord repeated the history of the request and set out its position. It acknowledged it was normal for a small amount of asbestos to be detected during an air test and that it could have provided more detail regarding this along with its asbestos leaflet to provide further reassurance. It apologised that this was not sent earlier.
The landlord confirmed that the Tenancy Enforcement Team in October 2021 were to proceed with legal action. The resident had advised the team that she had not received copies of the asbestos removal procedure which were sent by post in November 2021. She was contacted again on 7 December 2021 and advised again that she had not received the paperwork. This was sent again by email and receipt confirmed during the telephone call.
Since this date, the landlord explained, it had been in contact with Homeless Prevention regarding the resident’s situation. Due to the high arrears, a Notice Seeking Possession had been served and it would not allow the resident to remain at the decant property. The letter confirmed that this decision was consistent with its policies and procedures, and assured the resident that it would not allow her to move back to property A if it were unsafe. The landlord confirmed that it would allow additional time for the Homeless Prevention team to support the resident in any appeal of its decision.
The position was repeated in its Stage 2 response which was sent on 28 June 2022. This offered further assurances regarding the asbestos treatment at property A, and confirmed that as property A was deemed safe, plus the significant arrears it was against the landlord’s policy to allow the decant to become permanent. The landlord was satisfied that the matter had been dealt with in accordance with its policies.

Assessment and findings

Scope

It is not the purpose of this investigation to ascertain whether there is asbestos in the property, nor whether this poses a risk. The Ombudsman’s role is to consider what actions the landlord took once aware of the asbestos and the residents’ concerns regarding their safety, and to assess whether these actions and its overall response were fair in the circumstances.

Asbestos

Landlords have a legal duty to manage asbestos in the common areas of their residential properties (under regulation 4 of the Control of Asbestos Regulations 2012). This requires landlords to identify any asbestos containing materials, to assess the risk, and to plan to manage that risk. There is, however, no ‘duty to manage’ or to maintain an asbestos register for domestic properties, and no legal obligation to inform residents of where the asbestos is in their homes. A landlord is not obliged to remove asbestos from a domestic property if it is in a sound condition and can be left undisturbed. However, if it is damaged or deteriorates and there is the risk of asbestos dust, then the landlord is under a duty to repair or if necessary, remove the damaged asbestos.
According to the repair records, the landlord was aware of the presence of the asbestos in the bathroom ceiling and that this needed replacing since February/March 2019. Given that a job was raised to remove the ceiling, it can be inferred that the ceiling needed repair. This work was not started until May 2021. No documentation has been provided relating to this time period, which falls outside the complaint period.
The delay in starting the work was not identified or addressed as part of the landlord’s complaint response when investigating the complaint regarding its handling of the asbestos at the resident’s home. This has contributed to the resident’s perception that the landlord was not being open about its handling of the asbestos. The reasons for the delay are not known but it is noted that there was a history of access difficulties and both parties were in the process of commencing legal action. Given the timeframe, it was appropriate that the landlord focus on the most recent works and the steps it had taken to ensure that the property was safe.
Once the works were scheduled the landlord instructed a specialist asbestos firm to make property A safe. The works included informing the HSE of the extent of the works which was done on 11 May 2021. This lists the asbestos as textured decorative coating. The details of the work list what steps would be taken in relation to preparing the property for the works. This included covering the flooring, windows, and walls. It details the removal of the ceiling and gives a description of the fibre suppression that would be used. This indicated that the textured coating would be treated with a surfactant. A small sample would then be tested to confirm that the surfactant had impregnated the coating the full thickness. This was compliant with guidance for landlords in relation to the Housing and Health Safety Rating system which stated that where existing asbestos is damaged or is likely to be damaged or disturbed, an assessment needs to be made and action taken to repair, seal, enclose or remove it.
The resident has raised concerns to the Ombudsman that not all of the ceilings in the flat were replaced. The original inspection report of 10 December 2020 indicated that the textured coatings on the ceilings were damaged and needed to be removed, reboarded, and skimmed. The landlord has provided evidence of disposal of hazardous waste certificate showing that asbestos containing material was removed from property A and was disposed of safely. What is not clear is in which rooms the textured coatings were fully removed or, if and where, they were sealed.
The sealing of the ceilings would appear consistent with the work plan which anticipated that, where appropriate, the asbestos would be contained using the surfactant treatment. It is further supported by the landlord’s Asbestos Policy commitments which stated that if asbestos containing material is in sound condition but is showing signs of damage, or its condition has worsened and will not be subject to further damage, or in a position where they will not cause a risk to health if left untreated, then it will repair or seal the material (as opposed to removal).
Whilst the works may have been safely completed, the landlord did not fully explain to the resident how the final works matched the original inspection report, or if they did not, why this was reasonable. This omission contributed to her concerns that the works had not been safely completed.
Following completion of the works, a further company with experience and expertise in asbestos management was contracted by the landlord to complete an air test. This was initially done in the bathroom as this was the area where the asbestos had been disturbed and removed. This was a satisfactory method for ensuring that the first company had completed the work safely and that the presence of asbestos fibres was below the recommended threshold.
The landlord did not specifically address the residents’ concerns regarding the presence of a hole in the ceiling both before and after the works, nor is there any evidence of this being raised during the course of the complaint. However, as discussed above, if the ceiling in question was treated with the surfactant, this may not have altered the appearance of any hole. Further, when the resident raised concerns regarding the other rooms in property A, the landlord instructed its contractor to complete an air test in nine different areas of the property. All results were within the acceptable threshold.
The landlord acted appropriately in instructing suitably qualified experts to deal with the asbestos in the property. It sought to communicate with the resident throughout, but this proved difficult on occasion, in part, due to the lack of trust between the parties. Once aware of the resident’s concerns, the landlord went someway to provide evidence that property A was safe, by instructing a second expert to conduct a wider air test from nine different sites within the property. It also provided the resident with the documentation from each test.
The resident remained sceptical that the works had been completed as per the investigation report. Whilst it is unfortunate that the landlord did not fully address this issue, its tests had shown that the airborne asbestos fibres at the property were within the accepted range and there was no exposed asbestos. The landlord had therefore taken appropriate steps to manage the asbestos at property A and to reassure the resident and provide evidence showing that the property was safe for her to return.

Decant

The landlord’s policy on decants sets out that when a resident is temporarily rehoused in another property, they will retain the tenancy of, and continue to pay rent for, their main home. These residents sign a licence to occupy the temporary property but are not required to make any payment for the decant property. It states that in the vast majority of cases, the move will be temporary, but the landlord may offer permanent rehousing if it is in the residents’ wider interest. Residents are required to return to their main home immediately once works are completed and the policy stated that the landlord would take action, including legal action if the resident failed to return.
The landlord had explained the process prior to the move, which, is also contained in the licence agreement. It was therefore entitled to expect the resident to return to property A once it had established that the works had been satisfactorily completed and it was safe for the family to return.
The landlord did have discretion to allow the resident to move permanently into the decant property. However, its policy regarding transfers is that residents must have a clear rent account and be able to pay two weeks rent in advance on their new home before they move. In this case, the significant rent arrears owed by the resident, meant that the landlord decided not to use its discretion. The resident was, at the time, in breach of the terms for paying off her arrears.
This Service concludes that the landlord’s decision was compliant with its policy and was not unreasonable, given that the arrears related to the occupation of property A.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration by the landlord with respect to:
1. Its management of asbestos at the property.
2. Its decision not to allow the resident to remain in the decant accommodation.

Reasons

The landlord focused its response on the current works at the property. It ensured that suitably qualified contractors completed all works. It undertook safety checks to ensure that the works had suitably remedied the problem and established that the risk of airborne asbestos fibres was within the permitted threshold. A separate contractor conducted testing to ensure an independent result. The landlord decision to rely upon the works and the test results to establish that the asbestos had been dealt with appropriately was fair in the circumstances.
The landlord’s decision not to exercise its discretion to allow a permanent transfer to the decant property was reasonable given the substantial rent arrears and suspended possession order relating to the resident’s tenancy. The landlord referred the resident to its tenancy support team to assist with this and has liaised with the Homelessness Prevention team, allowing extra time as was appropriate.