Town and Country Housing (202108830)

REPORT

COMPLAINT 202108830

Town and Country Housing

24 August 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

This complaint is about how the landlord responded to the resident’s concerns about the roofing works to her building, including:
1. The removal of asbestos roof tiles and damage to potentially asbestos containing materials in her ceiling.
2. Her request that the landlord cover her accommodation costs if she vacated the property due to the disruption caused by the works.

Background and summary of events

The resident was an assured tenant of the landlord. The tenancy commenced on 3 April 2006. The property is a one-bedroom flat. The resident has advised this service that she moved out of the property on 14 November 2021.
The landlord has advised that the resident’s block was known to be affected by water ingress to various flats, with defects in the roof and many patch repairs undertaken over time. The external tiles had an asbestos content, so a licensed asbestos removal contractor removed the tiles. The works to replace part of the roof to the resident’s block started on 10 January 2021.
On 18 January 2021, the resident emailed the landlord to express her concern about the works going ahead as the operatives were removing asbestos tiles and she had been told not to walk on her balcony or walkway in case the tiles break. The resident said that she had received a letter about the works but it had got wet and so she would like another.
The resident emailed the landlord a number of times on 19 January 2021, asking for a copy of the method statement it was using for the roof works and expressing concerns about:
1. Whether the roof insulation that had been removed from her bedroom would be put back as it had been exposed and had become full of water.
2. The risk of asbestos due to damage to the walls inside her property and were she to open her windows and doors, or to walk along her balcony.
3. The ceiling in her living room and bathroom containing asbestos and the risk to her should they be damaged as a result of the roof works. The resident noted that all her other ceilings had been replaced a few years previously.
The landlord responded to the resident over the course of 19 and 20 January 2021, advising that:
1. The insulation that had been removed and got damp would be replaced with new insulation.
2. It understood that the resident was anxious about the removal of the roof tiles and assured her that this was being done in an entirely safe manner in accordance with all H&S requirements.
  1. Its contractor, who had worked for it since 2014, had to meet strict compliance with all H&S legislation, as demonstrated during the tender stage.
  2. It had an independent consultant that undertook quarterly site audits to ensure compliance with Construction Design and Management (CDM) regulations.
3. The tiles posed no risk in their current state and were carefully removed by the asbestos removal contractors, double bagged and transported to ground level where they were disposed of in a safe manner.
4. As with any building works, it recommended that residents keep their windows closed during the period in which the work was taking place to prevent dust getting in to their homes.
5. It had requested copies of both the letter about the works going ahead and method statement from its contractors.
6. The roof was not going to disturb the textured coating, this was on the inside of the plasterboard, and would need to be directly disturbed by drilling right through or sanding to potentially cause release of any asbestos.
7. It would only do a test if a ceiling was to be removed, repaired, or damaged. As the roof works were separate they should not affect the ceilings and so would not cause any concern.
On 20 January 2021, the resident emailed the landlord to report damage to her bedroom ceiling which she said was the result of the works to the roof. The resident said she was concerned that as the ceiling board was coming loose and falling on her bedroom floor, the same could happen to the asbestos containing ceilings in her living room and bathroom.
The landlord replied the same day saying that it looked like the roof works had popped a nail in the ceiling board. The landlord said that it had discussed how the rest of the roof areas, above the ceilings that potentially contained asbestos, could be done safely, and that it was also making enquiries with the roofer to see if the fixings could be done in a different way. The landlord went on to say that it would be prudent to get the remaining ceilings tested and to formulate a plan and risk assessment. The landlord said that the test would be done on 22 January 2021 and that works would be put on hold above the resident’s flat until the results had been received.
Later on 20 January 2021, the resident emailed the landlord to say that the works had caused a major disruption to her. The resident said that she had decided to vacate the property as soon as possible as the noise made it impossible for her to carry out both her work and studies effectively, she had moved her bed into the living room due to the noise from the roof sheeting bellowing in the wind and with no insulation in the roof in the middle of winter her property was unfit to sleep in. The resident asked that the landlord cover her costs until the works were completed and safe.
On 22 January 2021, the resident emailed the landlord to say that before she would allow access to her property for the testing of the ceilings that day she had a number of questions about who was going to carry out the test and how they were going to do it. Following further emails between the resident and the landlord the same day, it was agreed that the test would be re-booked for 26 January 2021. The landlord also said that were the tests positive for asbestos content in the ceiling, its contractor was willing to pay the resident’s accommodation costs for the duration of the roof replacement works, for up to five days and a maximum of £500. The resident then agreed to the appointment going ahead on 26 January 2021.
On the morning of 26 January 2021, the landlord emailed the resident a copy of the method statement that the asbestos testing company had sent.
On 27 January 2021, the landlord forwarded the results of asbestos test to the resident. The landlord confirmed that the aertex ceiling in the front room had come back as having Chrysotile present within it, but the bathroom aertex ceiling and the ceiling board above had come back as having no asbestos detected. The landlord advised that the contractors would now do a risk and method statement (RAMS) which it would forward upon receipt.
The contractors Method statement, prepared on 28 January 2021, confirmed that it would be erecting protective sheeting to the aertex ceiling to the living room of the resident’s flat to catch any possible debris from falling as the roof works were taking place. The method statement noted that the resident would not be in the property whilst the works were being carried out. With the roofing works finished the operatives would re-enter the property and remove the protective screens, which would be disposed of in a waste bag clearly marked as asbestos waste and sealed. An independent analyst would then be instructed to carry out a visual inspection and background air monitoring check to give clearance to the area and to confirm that it was safe for the room to be reinhabited by the resident.
On 28 January 2021, the landlord emailed to confirmed that it would like to commence the works on 1 February 2021 and asked that she let it know if she is able to get accommodation for 5 working days from that date. The resident was asked to provide the name of the place where she would be staying so that the payment, of up to £500, could be made to them. The landlord advised that the resident would need to give the keys to the contractor on the morning of 1 February 2021 and would not be able to return until the works and air tests had been completed.
On 1 February 2021:
1. The resident emailed the landlord to say that she had had contractors banging on her door since 8:30am but her accommodation would not be ready until 1am and would not be rushed.
2. The landlord responded to the resident asking for the name and address of the accommodation where she was going to stay, so that payment could be made. The landlord explained that it needed to ensure that any payment made was to a legitimate business as, in accordance with its anti-bribery and corruption policy, it could not pay the money into an unknown bank account. If the resident was not able to provide this the landlord suggested that she continue to move out and the issue of payment could be resolved whilst the works are undertaken. The landlord also asked if the resident could confirm that she would give its contactors access that day. The resident said she did not want to give the address where she was staying and that she would give the landlord that information on her return.
3. The landlord responded explaining that:
  1. If the resident was unwilling to provide access for the roof works it would begin legal action to enforce access to carry out the remaining works in accordance with her tenancy agreement.
  2. That the offer for payment for alternative accommodation would then become void, as the works could be undertaken safely whilst she remained in the property. She would also be re-charged for the call out fees for failing to allow access to the contractor.
  3. This was not the route it wanted to take, but as the roof replacement was a priority and it had already seen signs of water ingress, it would have no alternative.
The resident moved out of the property on 1 February 2021 but did not hand the keys over to the landlord at that time. The landlord then sought to rearrange the works for 8 February 2021.
On the 5 February 2021:
1. The landlord emailed the resident to say that it would pay £580 for housing costs up to 5 days with effect from 8 February 2021 but would not pay for the week’s accommodation commencing 1 February 2021 as it had not been able to gain access to carry out the works. The landlord also said that the £580 had been offered due to the resident’s concerns with having the works completed whilst she was in the property but that it could have carried out the works safely with her being residing in the property.
2. The resident responded saying that unless she had in writing that the landlord would cover her full costs she would not be handling over her keys on 8 February 2021. The resident said that it was agreed that she leave her property on 29 January 2021, the landlord had provided storage boxes and she had secured alternative accommodation. On 1 February 2021 she was about to hand over her keys but the landlord refused to make the payment for the accommodation she had booked. The resident said that this was why the keys were not handed over. The resident said that she would let the landlord have the keys on confirmation of payment so she could pay back her credit Card.
On 8 February 2021, the landlord emailed the resident to say that she could choose to use the £580 to cover the costs of the alternative accommodation for the week commencing 1 February or for the week commencing 8 February 2021 but it would not pay for both weeks. The landlord explained that this was because the works could not go ahead on 1 February 2021 as the resident had not provided the keys. The landlord said that this offer was dependent on the resident granting access that morning as it could not delay the works any further. The landlord said that if the resident had not agreed to provide access by midday that day its solicitors would be instructed to commence proceedings to obtain an injunction to gain access to resident’s property for the works to be carried out.
The resident did not provide access and on 12 February 2021, the landlord’s solicitors wrote to the resident to confirm that:
1. Another appointment had been made for the works to go ahead between 15 and 10 February 2021.
2. If the resident did not feel able to remain in the property during the works, the landlord would pay £580 towards her alternative accommodation costs.
3. If the resident remained in the property on 15 February 2021 and during the works she would not receive this payment.
4. If the resident confirmed that she would be moving out of the property, she should provide a receipt for accommodation costs to the contractor at 9am on Monday 15 February 2021 and hand over the keys to the property. Once she had left the property, payment would be made.
The resident provided the landlord with keys as agreed on 15 February 2021 and the keys were returned to the resident on 23 February 2021 following completion of the works to the roof above her property.
The resident submitted a formal complaint to the landlord on 8 March 2021.The resident said that she had not been informed about the works to the roof, that the roof was replaced in the winter months and that she had been disturbed by contractors knocking at her door to explain asbestos procedures. The resident also complained that her bedroom was uninhabitable due to the ceiling being penetrated by roof nails and that she had booked temporary accommodation which the landlord said it would reimburse but not for the full costs. The resident said that her tenancy agreement stated that the landlord would provide financial assistance with regards to accommodation costs, would suspend her rent whist repair works were taking place and support travel/removal costs.
The landlord issued its stage one response on 22 March 2021.The landlord said that whilst recognising things had not been easy for the resident of late, it had been unable to find any evidence of service failure and so had not upheld the resident’s complaint. The landlord said that its offer of £580 for alternative accommodation was reasonable and proportionate in the circumstances and no further offer would be made. The landlord said that it was sorry the resident did not feel supported through the repair process. Its Housing Manager had contacted her by both email and over the phone to advise her of the urgent need to give access for repairs, the consequences of her failure to give access when required and that temporary accommodation arrangements had been discussed with her. The landlord went on to say that:
1. It had given the resident adequate notice of the intended works, its contractor hand delivering letters, on 18 December 2020 and 8 January 2021, advising of the intended roof replacement start date.
2. It appreciated that it would have been helpful to have communicated its long term plans regarding the roof replacement, having undertaking a balcony repair project and a partial roof replacement the previous year. The landlord said that it only became aware of the extent of the roof defects at that time.
3. Unbeknown at the time was that certain roof slopes had the internal ceiling board attached directly to them, and fixing new slates caused disturbance. This was not foreseen, and it would check for this in future. The ceiling that was disturbed did not contain asbestos.
4. Due to disruption caused by Covid and the volume of other roof replacements, the roof works were scheduled when capacity allowed, which it said was unavoidably in the winter months. The contractor capacity being such that it could not undertake all roofing works in the summer months.
5. It acknowledged that roof replacement would cause disturbance and inconvenience, but this work was external to the home and of limited duration.
6. With regards to the resident’s concerns regarding asbestos, the landlord said that its staff did not routinely explain asbestos testing or removal in detail to residents as the works were carried out by licenced asbestos specialists and they are best placed to advise and inform residents on a case by case basis.
7. Asbestos survey and testing is a specialist role and the process is tightly regulated. It is for the asbestos specialist to decide on the survey and sampling methodology which is dictated by the work proposed. It is not reasonably practicable to set that information out in letter form prior to the survey, especially if time is limited.
8. Residents are sometimes interested in the results of asbestos surveys and it was happy to share this information on request. The landlord also said that it was introducing a new form of report that would enable it to share survey results in an accessible format in future.
9. It had offered to pay for alternative accommodation which, had the timing been right, would have meant the resident was elsewhere for the duration of the works directly over her home, noting that offering temporary accommodation was a most exceptional arrangement.
The resident wrote to the landlord to escalate her complaint on 26 March 2021. The resident said that she was not happy that she had to pay rent whilst she was out of the property for two weeks and that the landlord had refused to pay for the alternative accommodation in the week commencing 1 February 2021. The resident also challenged the landlord’s position that letters had been hand delivered before the works commenced and that the landlord had taken appropriate steps to ensure that there was no danger to her with regards to asbestos.
The landlord issued its final response, on 25 May 2021. The landlord said that it was satisfied with the responses provided at stage one, it had found no evidence to move the resident’s complaint to stage two, and that this response concluded its formal complaints process. The resident was advised of her option to refer her complaint to this service.
The resident referred her complaint to this service on 3 August 2021, confirming that the outstanding issues were that:
1. The landlord had failed to address her concerns about the asbestos or to take into consideration that some residents were working from home.
2. The landlord left her with a debt of £580.00 and still expected her to pay the rent for the two weeks she was out of the property.

Assessment and findings

Relevant legislation, agreements, policies and procedures.

Under Section 11 of the Landlord and Tenant Act 1985 the landlord must keep in repair the structure and exterior of the dwelling house . Clause 3.1 of the tenancy agreement confirms this obligation.
Clause 5.27 of the tenancy agreement states that the resident must allow the landlord’s staff, agents and contractors to enter their home to inspect or carry out repairs at reasonable hours of the day. The landlord will normally give at least 24 hours’ notice that it will be calling, unless it is an emergency repair.
Section 1.2 of the landlord’s Temporary Decant Policy states that a temporary decant may be needed:
1. Where the property has become uninhabitable.
2. Where there are health and safety risks if the residents remain in the property.
3. To allow essential works or improvements to take place and it would unreasonable to expect the residents to remain.

Assessment

The Ombudsman’s role is to consider whether the landlord responded appropriately to the resident’s concerns by adhering to its policies, procedures, and any agreements with the resident, and that the landlord behaved reasonably, taking account of what is fair in all the circumstances of the case.
The works to the roof of the resident’s building commenced on 10 January 2021. On 18 January 2021, the resident raised concerns about the removal of asbestos tiles from the roof. The resident also raised concerns about insulation that had been removed and asbestos within her property, including to the ceilings in her living room and bathroom.
The landlord responded promptly to the resident’s concerns providing its responses over the course of 19 and 20 January 2020. The landlord addressed each of the resident’s concerns and provided reasonable responses in the case of each. With regards to the asbestos roof tiles, the landlord provided a detailed response as to what steps it had taken to ensure that these were removed safely. With regards to the ceilings to the resident’s living room and bathroom, the landlord said that it did not believe the roofing works would affect the ceilings and explained the circumstances under which it would carry out tests.
On 20 January 2021, the resident reported damage to her bedroom ceiling, which had been replaced in 2016 and did not contain any asbestos. Given the resident’s concern that similar damage might be caused to the ceilings to her bathroom and living room, which had not been replaced in 2016, the landlord took a number of appropriate steps to address her concerns:
1. It explored the possibility of doing the roof fixings a different way with the contractor, given that the current works to the roof had caused a nail to pop in her bedroom ceiling.
2. It arranged for the living and bathroom ceilings to be tested for asbestos, said that the roof works would stop about the resident’s property until the results had been received, and that it would then formulate a plan and risk assessment.
On 20 January 2021, in addition to her concerns about the risk of potential damage to the ceilings in her living room and bathroom, the resident had also raised concerns about the disruption the works to the roof had had on her and said that she would be vacating the property as soon as possible until the works had been completed.
When carrying out major works, such as the replacement of a roof, a degree of disruption should be expected although the landlord and its contractor would also be expected to ensure that this is not excessive, nor lasts an excessive amount of time. In this case the works commenced on 10 January 2021 and ceased on 20 January 2021, within 10 working days, and there is no evidence of the noise from the works being in excess of what would normally be expected in such cases. There is also no evidence at that time that the resident’s home was uninhabitable or that the works could not be completed with the resident living in the property. As that was the case, the landlord would not be expected, under its Decant Policy, to offer the resident a temporary decant.
Nevertheless, the landlord said that were the tests to the living room and bathroom ceilings to come back positive, its contractor was willing to pay the resident’s accommodation costs for the duration of the roof replacement works above her property, up to five days and a maximum of £500. This evidences that the landlord and its contractor had considered the resident’s concerns and sought to take reasonable steps to ensure that they could be allayed.
The asbestos test was arranged for 22 January 2021. As the damage had been caused to the bedroom ceiling, that was known not to contain asbestos, it was reasonable for it to take two days for the test to be carried out. However, the resident refused access on 22 January 2021, stating that she would not do so until the landlord had answered further questions about the asbestos test. It is evident that the landlord provided the resident with satisfactory responses as she allowed access for the test to be caried out on 26 January 2021.
The landlord provided the resident with a copy of the results of the asbestos test on 27 January 2021. As the living room ceiling had come back as having Chrysolite present, the landlord did what it said it would do. It arranged for its contractor to prepare a method statement as to how it would ensure that the resident’s property would not be contaminated with asbestos in the event that the living room ceiling be damaged during the remaining roof works.
The landlord confirmed that the works to erect protective sheeting to the living room ceiling, and to the roof above the resident’s property, would commence on 1 February 2021 and asked the resident if she could confirm the details of her alternative accommodation so that this could be paid. The landlord also provided the resident with storage boxes so she could pack.
The resident moved out of her property on 1 February 2021 but did not hand over the keys to the landlord.
The resident said that the reason for this was because the landlord had not paid for her alternative accommodation. It is clear from the evidence that the landlord did make a number of attempts on 1 February to arrange to pay the costs of the accommodation, however, it could not reasonably be expected to pay the money without being able to evidence who it had been paid to. Given that the resident had refused to provide the landlord with the details of the accommodation it was reasonable for the landlord to withhold payment at that time. It was however, not reasonable for the resident to refuse to give the landlord her keys to allow the works to go ahead given that she had left the property and that her providing access was an obligation under the terms of her tenancy agreement.
As the resident had not provided the keys, the landlord was unable to gain access on 1 February 2021 and so sought to rearrange for the works to go ahead the following week 8 February 2021.
At that point the resident said that she would only provide the landlord with the keys to her property if it were to cover the costs she had already incurred and the costs that she would incur that week. In response the landlord said that it would pay £580 for either the week commencing 1 February or for the week commencing 8 February 2021 but it would not pay for both weeks. This was a reasonable approach for the landlord to take as the delay in the works being completed was due to the resident’s refusal to hand over the keys and no fault of the landlord. The payment was also not being offered because the resident could not live in the property whilst the works were carried out but rather in response to her concerns that the living room ceiling, which contain Chrysotile, may be damaged in the same way as her bedroom ceiling had been.
The resident again did not hand her keys to the landlord on 8 February 2021 following which the landlord’s solicitor wrote to her on 12 February 2021 to advise that a further appointment had been booked for the works to go ahead between 15 and 10 February 2021. The resident provided the keys on 15 February 2021, the works were completed within a week and the keys returned to the resident on 23 February 2021.

Conclusion

Having reviewed the evidence I am satisfied that the landlord took into account the all the circumstances of the case and took reasonable and appropriate steps to address the resident’s concerns. It arranged for the ceilings to be tested and then instructed its contractor to prepare a method statement as to how it could mitigate the risk of contamination should the roof works above the resident’s property damage the living room ceiling in the same way it had her bedroom ceiling. It also agreed to cover the cost of the resident’s alternative accommodation despite it not being obliged to do so.
Whilst I appreciate that the resident had paid to stay in alternative accommodation for two weeks, the landlord had only agreed to pay for five days whilst the works were completed. The delay in the works being completed was the result of the residents repeated refusal to hand over the keys and not due to any fault on the part of the landlord.
With regards to the resident being expected to pay rent whilst she was staying in alternative accommodation. There is no evidence that this matter was raised during the formal complaint process. However, whilst in alternative accommodation the tenancy of the permanent home continues and as such the resident would remain liable for rental charges.
An internal landlord email of 19 March 2021 confirmed that the resident submitted an invoice for a one week stay at the alternative accommodation totalling £424.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its response to the resident’s concerns about the roofing works to her building.

Reasons

There is no evidence that the property was uninhabitable or that the works could not proceed with the resident in the property, and the landlord had taken reasonable steps to allay the resident’s concerns about any potential health and safety risks. The fact that the landlord offered to pay towards the resident’s costs of alternative accommodation, when it was not obliged to do so, showed that it had taken into consideration the resident’s concerns and was prepared to take reasonable steps to seek to allay those concerns.
It was reasonable for the landlord to ask the resident to provide details of the accommodation where she was staying before any payment was made. It is also important to note that the landlord was not obliged to cover the resident’s costs beyond that which it had agreed.