Westminster City Council (202105601)

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REPORT

COMPLAINT 202105601

Westminster City Council

16 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 resident’s complaint is about the landlord’s handling of a gas safety check and asbestos. The landlord’s complaint handling will also be considered.

Background and summary of events

  1. The resident has a flexible tenancy agreement with the landlord for the property. The resident moved into the property in 2014.
  2. Sometime between February and May 2018 the landlord undertook works which meant that a panel in the bathroom was poorly reinstated.
  3. On 21 July 2020 the resident received information on the property in relation to the renewal of her tenancy. This report noted that there was an asbestos risk in the bathroom.
  4. On 28 July 2020 the resident made a complaint to the landlord about the lack of annual gas safety checks and asbestos risks in the property.
  5. On 10 August 2020 the resident wrote to the landlord. She stated that the property had now been inspected for gas and asbestos. A gas leak had been identified and the gas was turned off in the property. She states that she was told that the gas had been leaking for a while and she “was lucky that it did not cause an explosion”. She also raised concerns about being exposed to asbestos in the bathroom due to work previously done by the landlord. She stated that neither of the issues would have been looked at if she had not raised concerns.
  6. On 10 August 2020 the landlord undertook an Asbestos Management Survey. This identified that there was asbestos in the bathroom of the property in a riser panel below the sink. The report noted that “exposed edges [were] taped over” and the recommended action was to “encapsulate”. It was identified as a C risk code with a medium material risk of 7.
  7. On 27 August 2020 a contractor developed a workplan to remove the asbestos and the works were confirmed as completed on 28 August 2020.
  8. On 8 September 2020 the resident wrote to a third party who passed her concerns on to the landlord. Relevant to this complaint, she raised an issue regarding gas safety checks. She stated that when she renewed her tenancy in July of that year she noticed that the paperwork said that she did not have gas, which was incorrect. She was also informed that there was asbestos under the bathroom sink, which she was not aware of. She was concerned about this as the landlord had recently done works to that area which were left in a state of disrepair. The resident stated that the housing officer said that a gas safety check would be arranged, however someone came out to check the fire alarm. She called the maintenance team twice to arrange a gas safety check, but was told that the property does not have gas. A gas safety inspection was carried out on 31 July and it was identified that there was a gas leak. The gas was turned off and the resident installed an electric cooker. The resident arranged for an asbestos inspection which found that the works done had disturbed the asbestos and it would now have to be removed as soon as possible.
  9. On 28 September 2020 the landlord sent the resident a stage one complaint response. The landlord stated that its investigations had found that it had not undertaken an annual gas safety check at the property since 2016. It stated that when the empty property survey was conducted in 2016 the gas pipework that feeds into the cooker was not recorded which meant that the property was categorised as being ‘smoke only’. The landlord apologised for this. It stated that the system had now been updated so that an annual safety test would be carried out. It found that there had been a service failure in its record keeping. The landlord stated that a survey in 2016 had identified a damaged asbestos insulation board and recommended encapsulation. It noted that a survey carried out in 2020 also recommended encapsulation. It stated that the results of an air test were below the safe limit. It did not uphold the complaint about asbestos as asbestos debris was not identified during the second survey, there was no significant evidence of deterioration and the air test readings were below the safe limit. The landlord apologised for not responding to the resident’s complaint within 10 days. The landlord offered the resident £125 compensation: made up of £25 for its failure to respond within ten days and £100 for its record keeping failure.
  10. On 29 September 2020 the resident requested that her complaint be escalated to stage two. The resident stated that the stage one response was not correct in its reference to when she contacted the landlord and its reference to gas safety inspections not being conducted since 2016 (it was since 2014). The resident also sought clarification on the landlord’s reference to the scent of gas. The resident stated that she was disappointed that the landlord had not upheld her complaint about its handling of the asbestos. She stated that the landlord had missed the point of her complaint regarding the asbestos. She stated that the landlord was incorrect in referring to an asbestos survey being carried out in 2016. She rejected the landlord’s offer of £125 compensation.
  11. On 6 October 2020 the landlord acknowledged receipt and advised that it aimed to provide a response by 20 October 2020.
  12. The landlord provided a stage two complaint response to the resident on 27 November 2020. The landlord stated that it upheld the resident’s complaint. It stated that a gas safety check had not been undertaken at the property since 2014 “due to an oversight on the empty property survey”. It clarified that in the first response the reference to gas having a “distinctive scent” was intended to allay the resident’s concerns. It clarified that if a room was well ventilated the smell of gas may be less evident. The landlord also acknowledged that the stage one response incorrectly stated that a survey had been undertaken in 2016. It confirmed that the last survey before 2020 was undertaken on 21 July 2014. It stated that it found it likely that the damage to the bathroom was caused during a heating repair undertaken by the landlord in 2018. It considered that this was likely because of a failure in the correct process being followed. It stated that the “health and safety” of the resident’s home was “not compromised during the removal of the asbestos”. It apologised for not explaining to the resident that a temporary move was not necessary. It offered the resident £295 compensation – made up of £100 for distress and inconvenience; £50 for time and trouble; £20 for the delay in providing the complaint response; £25 for its failure to respond within ten days and £100 for its record keeping failure (the last two being its original stage one compensation offer).

Assessment and findings

Gas Checks

  1. Pursuant to the Gas Safety (Installation and Use) Regulations 1998 and as set out in its Gas Safety Policy, the landlord has an obligation to undertake annual gas safety checks.
  2. The landlord has acknowledged that there was an error when the empty property check was done before the resident moved into the property. This meant that the property was recorded as not having a gas connection. As a result, the annual gas safety checks were not carried out until the resident raised the issue in 2020.
  3. The gas safety check that was undertaken on 31 July 2020 identified that there was a leak coming from the gas cooker. The resident replaced this with an electric cooker. The landlord has acknowledged that it will still have an ongoing obligation to undertake an annual gas safety check because there is still a gas connection in the property.
  4. The landlord’s obligation to undertake annual gas safety checks is an important safety obligation. In this case, it appears that an error in recording the property details correctly in 2014 meant that the landlord did not carry out the checks it was required to until the resident raised queries in in 2020. Once the landlord was aware that there was a gas supply to the property, it took steps to ensure that the appropriate checks were carried out. However it is of significant concern that a single recording error resulted in a resident not receiving annual gas safety checks for six years. In the Ombudsman’s view, there were weaknesses in the checks carried out when the property was empty and further checks should have been carried out to ensure the accuracy of the information being recorded, given the importance of annual gas safety checks.
  5. The Ombudsman finds that it was maladministration by the landlord in that it failed to undertake six annual gas safety checks that it was required to. The landlord’s offer of compensation in respect of this is considered later in this report.

Asbestos

  1. 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 make a 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. 
  2. In this case the evidence indicates that when undertaking repair works between February and March 2018 the landlord damaged a panel in the bathroom which had asbestos in it. The landlord has been unable to provide detailed records of the work. It is therefore not clear if an asbestos risk assessment was undertaken and not acted on or whether there was no asbestos risk assessment undertaken at all. The Ombudsman is satisfied that the landlord should have been aware at the time that the works were undertaken that there was an asbestos risk because of the damaged bathroom panel that needed to be addressed. It was a clear failing that the landlord did not manage the asbestos risk when it undertook the works in 2018.
  3. The Ombudsman has not been provided with evidence of the information which the resident was given when she renewed her tenancy in 2020 which led to her realisation that there was an asbestos risk. It appears that the landlord was on notice that there was an issue sometime before the resident became aware. It is not clear from the information provided exactly when the landlord became aware. The Ombudsman considers it a failing that the landlord appears to have become aware that there was an asbestos risk which it failed to take action on until asked to by the resident.
  4. The Ombudsman is satisfied that, when the resident raised the issue with the landlord, it took appropriate steps within a reasonable timeframe to remove the asbestos panel. However, the evidence provided indicates that whilst the landlord removed the asbestos it failed to take reasonable steps to make the area good again. The evidence indicates that there was a hole left in the wall after the works and the resident had to install a board herself over the hole left in the wall. The Ombudsman finds this to be a further failing.
  5. The Ombudsman notes that the air tests undertaken when the asbestos was being handled for removal were below the safe limit. The Ombudsman understands and is sympathetic to the resident’s distress about the risk to her and her children. However, the Ombudsman is satisfied that the tests indicate that the resident was not exposed to a meaningful risk from the asbestos.
  6. Asbestos risk management is an important duty which can potentially have a significant impact on the resident. The Ombudsman finds maladministration that the landlord failed to deal appropriately with the asbestos risk resulting from the works in 2018 until the resident raised concerns in 2020. The Ombudsman also notes that the landlord has not been able to demonstrate from its records whether or not an asbestos risk assessment was carried out at the time of the works. Whilst the landlord has offered some compensation in recognition of its failings in this area, this offer is considered in further detail below.

Complaint handling

  1. The Ombudsman finds that there has been a number of complaint handling failures by the landlord.
  2. The resident made her complaint to the landlord on 28 July 2020 and the landlord did not provide a first stage response until 28 September 2020. She asked for the complaint to be escalated to stage two on 29 September 2020 and the landlord did not provide a stage two response until 27 November 2020. This was not a particularly complex matter and the Ombudsman has not been provided with any reasonable reason for the time taken to provide responses to the resident’s complaints.
  3. The Ombudsman also considers that the wording used by the landlord was sometimes unhelpful. In its stage one response the landlord referred to the conversion of gas in the 1950s which meant that it had a scent so that any leaks could be identified by smell. This appears to have been intended to reassure the resident that she would have been able to identify any gas leak via smell. In fact,  the Ombudsman notes, a leak from the gas cooker was identified and the gas supply was immediately turned off when the inspection was undertaken because of the risk from the leak. The resident had not identified this from smell.
  4. In its stage one complaint response the landlord incorrectly stated that a survey carried out in 2016 identified the damaged asbestos insulation board. This is incorrect. In its stage two response the landlord apologised for incorrectly stating in its stage one response that a gas safety survey was carried out in 2016. The landlord did not in fact state this in its stage one complaint response and the landlord appears to have confused the error it made about the timing of the asbestos survey.
  5. In its stage one response the landlord’s position was that there was not a failing by it with regard to the asbestos issue. There were clear failings by the landlord and the Ombudsman considers it was unreasonable for it to initially take the position that there were not. Whilst the landlord appears to have shifted its position somewhat in its stage two response, and it acknowledges that the correct asbestos procedures were not failed, the Ombudsman is not persuaded that the landlord sufficiently articulated that there had been a failing by it and to acknowledge the distress this had caused the resident.
  6. The Ombudsman therefore finds that there has been a service failure by the landlord with respect to complaints handling.

Compensation

  1. In assessing an appropriate level of compensation, the Ombudsman takes into account a range of factors including any distress and inconvenience caused by the issues, the amount of time and effort expended on pursuing the matter with the landlord, and the level of detriment caused by the landlord’s acts and/or omissions. It considers whether any redress is proportionate to the severity of the failing by the landlord and the impact on the resident. The Ombudsman also takes into account the evidence that has been provided. Ultimately the Ombudsman considers what would be fair and proportionate. The aim of compensation is not to be punitive but to provide redress for the impact of any failings by the landlord on the resident. In the case of compensation for distress and inconvenience, we are not able to quantify a definitive loss and the intention of such an award is to recognise the overall distress and inconvenience suffered by the resident.
  2. In its stage two complaints response the landlord offered the resident £295 compensation – made up of £100 for distress and inconvenience; £50 for time and trouble; £20 for the delay in providing the complaint response; £25 for its failure to respond within ten days and £100 for its record keeping failure (the last two being its original stage one compensation offer).
  3. In considering whether the £295 offered by the landlord in this case is reasonable, the Ombudsman has referred to this service’s Remedies Guidance. This sets out that awards between £250 and £750 may be appropriate where there has been “considerable” failings by the landlord but no permanent impact on the resident. The Ombudsman has also taken into account the landlord’s Compensation and Payment Schemes.
  4. However, the Ombudsman is persuaded that the knowledge of the potential risks has caused the resident understandable anxiety. The Ombudsman considers that the £250 compensation offered with regard to the asbestos and gas safety failings is not adequate. The resident was understandably distressed by the failings. It is fortunate that neither the gas leak or the asbestos ultimately caused harm to the resident. However, it is reasonable to expect that contemplating the “what ifs” has caused the resident notable distress. The Ombudsman’s view is that the landlord did not take into account the cumulative impact of the issues – either the lack of gas checks or the asbestos queries on their own would have caused significant concern to the resident. The Ombudsman finds that the landlord did not acknowledge this and, indeed, this distress was exacerbated by the poor information and mishandling by the landlord. The Ombudsman considers that £400 is an appropriate compensation for the failings with respect to the asbestos and the gas safety issues.
  5. The Ombudsman is also not persuaded that £45 offered for the complaints handling failures is sufficient. There were a number of failings. The delays in responding caused the resident distress and the resident understandably felt that the landlord had failed to fully come to grips with her complaint. The Ombudsman considers that £125 compensation for complaints handling failings is more appropriate.
  6. It is not clear if there are still issues outstanding with making good the area where the asbestos removal work was done. The Ombudsman requires that the landlord asks the resident if she considers that further work is required to make good the area and, if so, to assess and undertake such reasonable make good works as are required. The landlord should do this within one month of the date of this determination.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme the Ombudsman finds that there has been maladministration by the landlord with respect to its handling of gas safety checks at the property.
  2. In accordance with paragraph 54 of the Housing Ombudsman Scheme the Ombudsman finds that there has been maladministration by the landlord with respect to its handling of asbestos risks at the property.
  3. In accordance with paragraph 54 of the Housing Ombudsman Scheme the Ombudsman finds that there has been a service failure by the landlord with respect to its complaint handling.

Reasons

  1. The landlord’s obligation to undertake annual gas safety checks is an important safety obligation. A recording error meant that the landlord failed to undertake six annual gas safety checks that it was required to. Whilst the landlord offered some redress in recognition of this, this offer of compensation did not fully recognise the extent of the failings in this case.
  2. The landlord should have been aware at the time that the bathroom works were undertaken in 2018 that it needed to identify and manage asbestos risks. It failed to do so. It was a clear failing that the landlord did not manage the asbestos risk when it undertook the works in 2018. However, the landlord took reasonable steps to manage the issue when the resident brought the matter to its attention.
  3. The landlord took an unreasonable amount of time to provide its stage one and stage two responses. The landlord failed to full get to grips with the resident’s complaint and made errors in its response.

Orders and recommendations

  1. The Ombudsman requires that the landlord pay the resident £525 compensation within four weeks of the date of this decision. This includes the amounts previously offered by the landlord.
  2. The Ombudsman requires that the landlord asks the resident if she considers that further work is required to make good the area and, if so, to assess and undertake such reasonable make good works as are required. The landlord should do this within one month of the date of this determination.
  3. The Ombudsman recommends that the landlord undertake a thorough review of its processes of recording the provision of gas at individual properties. The Ombudsman also recommends that the landlord undertake a review of its current records to ensure that there are not other properties which have been incorrectly recorded as not having gas.
  4. The Ombudsman recommends that the landlord undertake a review of its current processes towards identifying and managing asbestos risks.