Torus62 Limited (202115339)

REPORT

COMPLAINT 202115339

Torus62 Limited

30 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 complaint is about the landlord’s handling of the resident’s concerns about being exposed to and the presence of asbestos in his property and his subsequent request to be re-housed.

Background and summary of events

The resident lives in a two-bedroom maisonette and succeeded his late father’s tenancy in 2019.
The Ombudsman notes that the resident raised his concerns about asbestos in his home in 2020 which did not proceed to stage two of the landlord’s complaints procedure.
On 10 November 2021, the resident made a formal complaint which stated:
1. His living room ceiling which contained asbestos was damaged and he had tried to get the matter resolved since 2019. He explained that he was worried for his health after his father died of lung cancer. The landlord’s surveyor had previously attended to inspect the ceiling and explained that it was safe and the resident was not at risk. However, the resident was concerned that the ceiling was not sealed correctly and therefore was not safe as set out in legislation.
2. When the landlord’s contractor fitted solar panels on the roof they had drilled through the ceiling which contained asbestos and it had not been sealed.
3. On an inspection in 2019, when he had succeeded the tenancy, high risk asbestos had to be removed from the attic and several holes needed to be filled. He had emailed a staff member to discuss what he discovered in legislation and policy but found out that they had left the organisation. He wanted the matter resolved as soon as possible, so his health was not at risk.
On 18 November 2021, the landlord emailed and explained the outcome of its visit the day before and stated:
1. The resident was not at risk as the textured coating was a very low risk product, contained very small amounts of asbestos and when sealed was safe. It attached a leaflet for information to the email and explained that it would organise another inspection.
2. There were small areas of damage on the bedroom ceiling which had been sealed up and were in a safe condition. There were small holes in the landing cupboard and it would arrange for both ceilings to be replaced.
3. It attached documents about the removal of the cement pipe work from the loft, the most recent asbestos full survey/re-inspection of the property and explained that all the other surveys were completed by competent, experienced asbestos surveyors who all advised that the textured coatings to all ceilings were safe.
The landlord and the resident continued to exchange emails throughout November, which are summarised in the following paragraphs.
The resident explained that he no longer wanted to live in the property as he suffered from anxiety and mental health issues and, although the asbestos may have been low risk, he was exposed to it for over two years, after being told that it was safe when it was not and he no longer felt safe.
He stated that he was going to contact his local authority to request to be moved and asked the landlord to place any work on hold as he was applying to court and organising an independent surveyor.
He also requested the name of the company who fitted the solar panels as they drilled through the ceiling from the roof into the kitchen and it had not been sealed. He wanted to know if they were notified about the asbestos and, if they were, why they were drilling the holes while his father was in the property and the ceiling was not sealed.
He stated that he had to fill in a hole in the living room ceiling as the landlord did not do so and therefore had been exposed to asbestos. Previous surveys recommended that the asbestos should be removed, which the landlord did not do. The resident also stated that his father’s lung specialist had asked him if he had been exposed to asbestos.
He had looked online and the asbestos in the property was a high risk to his health. He had chest infections and his right shoulder was in pain which were signs of being exposed to asbestos.
The resident explained that he did not want an air test as people in his home gave him severe anxiety. He stated that if the landlord deemed the property was safe, then it would need to close the complaint so he could contact the environmental health department.
The landlord explained that it did not want to cause the resident any additional distress or anxiety and assured him that he was not at risk from that particular asbestos. It went on to say that it had a duty of care to ensure the properties were safe. After visiting the resident’s property it confirmed that none of the ceilings were in poor condition, however to ease his concerns it agreed to remove the asbestos from the relevant ceilings and added that, in 2020, when it discovered that the cement pipe was in poor condition, removal works were immediately planned.
The landlord confirmed that it would close the complaint because the resident declined its offers which included air testing and re-inspections, and asbestos removal works. However, it explained that it would be available to speak to any third party acting on the resident’s behalf in the future.
On 24 November 2021, a letter from his GP stated that the resident ‘lives in a house which has asbestos in the roof and this is affecting his health’ and advised that they had referred the resident to a respiratory specialist.
In December 2021, the resident raised his concerns that he was not informed that there was asbestos in the property when he succeeded the tenancy and he would not have filled in the holes in the ceiling if he had known. He was also concerned that there was asbestos in other ceilings in the property which increased his anxiety and he requested to be moved to a home that was asbestos free.
The landlord explained to the resident that, as he was already staying at his sister’s home, it would offer him one week’s rent payment for him to remain there for 3-5 days while it carried out the work and all relevant paperwork would be available for the resident.
On 8 December 2021, the landlord’s partner housing register organisation explained to the resident that, although he could complete a medical form, his rehousing application would not be approved as he still had arrears and was ineligible to move.
On the same day the resident chased the landlord for information about the solar panel company that he had previously requested from it.
On 10 December 2021, the landlord acknowledged that the resident asked for his complaint to be reviewed and issued its stage one complaint response which stated:
1. It had looked at previous asbestos surveys issued and the identified works recommended in the 2020 survey were completed in March 2020. The remaining asbestos within the property, primarily chrysotile compound texture coating to ceilings was noted as low risk and remained a “manage in situ” recommendation.
2. It attended on 17 November 2021, and concluded that the low-risk asbestos textured coating contained within the sealed ceilings remained in a safe condition and low risk.
3. It offered to instruct an independent and accredited surveying company to conduct a further survey and conduct an air test to fully determine if there were any asbestos fibres present in the resident’s home. In addition to this it would remove the texture coating to the landing cupboard and bedroom areas which were currently recommended as “manage in situ”. However the resident declined these offers.
4. It subsequently offered a discretionary payment to the value of one week’s rent to allow the resident to stay with his sister whilst the works were carried out. However, the resident refused as he wanted to move to a property that was asbestos free. The landlord said that it was unable to offer a permanent move based on the fact that the property contained asbestos.
On 15 December 2021, the landlord noted that it had spoken to the resident who had agreed for the works to be carried out and stated:
1. It had discussed the situation with the resident and he agreed for the work to be carried out and accepted the original goodwill gesture. The resident stated that there was a hole in the living room ceiling from a leak and the landlord agreed for the living room ceiling to be included as part of the removal works. It explained to the resident that he could ask the independent surveyor any questions he wanted on the day and he would be provided with the survey report. It had explained the process to him and would provide it in writing if needed.
2. The resident explained that he suffered from anxiety and his father had passed away from lung related illness. There was no formal diagnosis of an asbestos related illness, but as part of the routine questioning, the doctor had asked whether his father had been exposed to asbestos which had stuck with the resident.
3. The resident stated that he accepted the findings of the survey but that he could not help feeling anxious living in the property because of the asbestos and still wanted to move to a new property. The landlord explained that he needed to register with its ‘under one roof’ housing partner and that there was a waiting list. It would call him to fully discuss the process.
On the same day, the landlord issued its stage two complaint response which stated:
1. It empathised and appreciated that the resident had severe anxiety and understood that his father passing away in recent years with lung related illness, although not diagnosed as an asbestos related illness, elevated his anxiety levels and had been very difficult for the resident.
2. It had reviewed all of the relevant documents, including the surveys, repair history and the recommendations following the surveyor’s recent visit in November 2021 and correspondence between the resident and itself and concluded that the recommendations were appropriate and in line with legislation.
3. As the resident was unhappy with the patch repair to the living room ceiling following a leak in 2018, it would remove the asbestos in the living room along with agreed works and offered a discretionary payment of one week’s rent while the resident stayed at his sister’s while the work was carried out. An air test would be conducted and the results would be shared with the resident.
4. It would arrange for an independent accredited surveyor to complete a full asbestos survey and would inform the resident of the date they would attend in case he wanted to ask the surveyor any questions. It also provided a website link about asbestos in the home.
5. It provided the link to the independent housing register website and explained that a member of the allocations team would contact him to discuss the process.
On 18 December 2021, the resident cancelled the works as he had spoken to his solicitor who advised him that if the work was completed he would not be able to move. He did not want to live in a house that had asbestos and would complete the housing application and stay with his sister in the meantime.
On 5 April 2022, a GP’s letter stated that the property was too big for the resident and he was therefore struggling with the upkeep and bills, and the resident was concerned that he was breathing in asbestos which was causing him anxiety – he had not been back to the property since November 2020 and was currently staying on his brother’s sofa.

Assessment and findings

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.
The Ombudsman acknowledges the resident’s concerns about the asbestos in his home which were understandable, particularly in the context of his own health considerations and the health of his late father.
Upon receiving the resident’s complaint, the landlord’s surveyor visited to inspect his home, which was an appropriate action to take. He compared previous surveys and explained to the resident that the asbestos in the ceilings was a very low risk and concluded that the property was safe. It was reasonable and appropriate for the landlord to rely on its previous surveys and its current knowledge and inspection of the property to determine that the resident’s home was safe.
Although the landlord stated that the property was safe from asbestos, it recognised that the resident felt anxious about having asbestos in his ceilings due to his personal circumstances and, to ease his anxiety, it agreed to remove the asbestos in the resident’s bedroom and the landing cupboard and offered the resident an air test and re-inspection. These offers and subsequent further offers of solutions to the resident went above and beyond the landlord’s obligations and it demonstrated empathy and flexibility in response to circumstances which were clearly causing distress to the resident. Notably, as the resident stated that he was staying at his sister’s house, the landlord offered a week’s rent payment for him to remain there whilst it carried out the works.
The Ombudsman notes that the previous asbestos surveys in 2012 recommended the removal of asbestos in several of the ceilings in the property as the ceilings were slightly damaged, however the risk was deemed low. The landlord stated that it could not ascertain the reason why it had not carried out the work that was recommended in 2012 because the surveyor who managed the asbestos work at that time no longer worked for the organisation, which was unsatisfactory and it is understandable that the resident raised his concerns, considering his personal circumstances.
Landlords must ensure that their records are kept up to date. In this case, the landlord’s records should have detailed notes demonstrating the reason why it had not carried out the work to avoid relying on a member of staff’s memory or availability some years later. The Ombudsman has made a recommendation relating to this but has not made a service failure finding as the later surveys advised that the asbestos in the ceilings should be managed ‘in situ’.
Subsequent surveys stated that the asbestos ceilings should remain and be managed accordingly, and the landlord removed asbestos that was high risk in the property when it was informed, which was appropriate to do.
The evidence provided for this investigation demonstrated that the landlord issued the solar panel company with the 2012 survey as part of its handover for the installation of solar panels in around 2012/2013. The resident stated that the contractor carrying out that work at the time drilled through the ceiling which had asbestos.
Whilst the Ombudsman does not doubt the resident’s recollection that the contractor drilled through the ceiling which contained asbestos, it is noted that this is reported to have occurred around ten years before this complaint was raised. Based on the evidence available and noting the time that has passed since, the Ombudsman cannot say with reasonable confidence what happened and whether the resident was exposed to any risk. In addition, it is not the Ombudsman’s role to establish a causal link between the reported incidents and the resident’s health. These are issues that may be better addressed via legal proceedings.
The landlord gave reassurances to the resident that the asbestos in the ceilings was low risk and although there was a delay, it gave the resident the information he asked for. It did not address the residents’ concerns specifically about the possibility that he and his father were exposed to asbestos following the work carried out by its contractor. It would have been reasonable for the landlord to explain to the resident its position on the resident’s concerns about being exposed to asbestos in 2012/2013. Although a significant period of time had passed, taking into account the resident’s overall concerns, it would have been appropriate for the landlord to have addressed this.
The Ombudsman notes that the resident stated that he was unaware that there was asbestos in the ceiling when he succeeded the tenancy and would not have worked on the ceiling if he knew. The Ombudsman has made a recommendation based on this issue at the end of this report.
The resident understandably asked to move to an asbestos free home. The landlord confirmed that the property was safe and it would not be able to support his move to a new build home and it gave the resident information on how to register to move with the local authority which was a reasonable approach.
The Ombudsman notes that the partner organisation that manages the housing register explained to the resident that he had former tenancy arrears which made him ineligible to move and, as his landlord informed them that the asbestos in his home was low risk and was being managed, it could not grant him a move under urgent or exceptional circumstances. They also said that his letter from his GP did not provide evidence of ill health or a serious medical condition and therefore the resident needed to pay his arrears in full in order to be eligible to move.
Whilst the Ombudsman empathises with the resident, the landlord has given the resident appropriate advice and information about how he can go about moving and has stated its position that his current home is safe for him to live in. These are appropriate actions and it is not obliged to take any further steps in respect of his request to move.
The Ombudsman notes that there was a delay in the landlord’s stage one complaint response and the resident asked for a review before it had issued its response. Landlords must ensure that they issue their stage one response within their own deadlines. When this is not possible, they must ensure that they have informed their resident that they are extending their response deadline. In this case the landlord failed to do either of these.
However, it is clear that the landlord in that time made significant efforts to find reasonable solutions to the resident’s complaint, therefore it is the Ombudsman’s opinion that the delay in the issue of its stage one response and lack of communication did not constitute a service failure as the impact on the resident was minimal.
The Ombudsman considers whether landlords have taken reasonable steps to support their residents in proportion to the concerns raised. In this case the landlord demonstrated that it offered the resident reasonable solutions to put things right and at times went beyond its obligations to ensure the resident was comfortable in his home. It also signposted him to the right organisations so he could register to move home. Therefore, the Ombudsman has found that there was no maladministration in the landlord’s handling of the resident’s concerns about his exposure to and the presence of asbestos in his property and subsequent request to be re-housed.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its handling of the resident’s concerns about his exposure to and the presence of asbestos in his property and his subsequent request to be re-housed.

Reasons

The Ombudsman empathises with the resident’s circumstances, however the landlord demonstrated that it took reasonable actions to resolve the resident’s concerns and at times went beyond its obligations to make the resident comfortable in his home.

Orders and recommendations

Recommendations

Where possible, the landlord should support the resident to maximise his chances of moving to a new home. Where appropriate, the landlord should signpost him to external agencies to help him clear his arrears and work with him to access any relevant schemes such as downsizing incentive schemes and home swapper if relevant and appropriate.
Ensure residents that succeed tenancies are given a tenancy pack that includes important information about their home, including asbestos surveys.