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Scarborough Borough Council (19 019 720)

Category : Environment and regulation > Pollution

Decision : Not upheld

Decision date : 05 Feb 2021

The Ombudsman's final decision:

Summary: Mr Y complains about the way the Council responded to his reports of asbestos in a local holiday cottage. In our view, and based on the information available, we find the Council acted quickly and in line with its enforcement policy and Health and Safety Executive guidance to assess the reported risk. It reached a conclusion which Mr Y disagreed with, but the Ombudsman has no grounds to challenge the merits of that decision.

The complaint

  1. Mr Y complains about the way the Council dealt with his report of asbestos in a holiday cottage which he stayed in with his family. He complains that the Council:
      1. failed to protect the public from the negligent danger of asbestos fibres;
      2. failed to protect guests and employees who were on the farm at this time and that subsequent guests were left at risk of asbestos;
      3. accepted an 18-month-old asbestos survey and failed to check the Health and Safety Executive (HSE) register to identify where asbestos risks were;
      4. failed to ensure the holiday cottage owner was made aware of the dangers of asbestos; and
      5. failed to answer his questions, dismissed his concerns, frustrated his complaint to the holiday cottage, and an officer was disrespectful and wrongly stated the Council had no power to act.
  2. As a result, Mr Y says he and his family have been exposed to asbestos, putting their health at risk. He also says he was prevented from complaining to the holiday cottage and has experienced avoidable time and trouble pursuing the matter.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I considered the information submitted by Mr Y and discussed the complaint with him.
  2. I made enquiries of the Council and considered its response.
  3. I consulted the relevant legislation and guidance around the control of asbestos. I also reviewed the Council’s own Environmental Health policy.
  4. I issued a draft decision and invited comments from Mr Y and the Council. I considered the comments received before making a final decision.

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What I found

Control of asbestos

  1. Depending on the location of the asbestos, the ‘Control of Asbestos’ regulations (2012) are enforced either by the HSE, councils or the Office of Rail and Road (ORR). Councils are the principle enforcing authority for retail premises, wholesale distribution, warehouses, hotel and catering premises, offices, and consumer/leisure industries.
  2. The HSE guidance and Code of Practice advises, “If you accidentally disturb and release asbestos during your work, it must be dealt with quickly and appropriately. The clean-up of lower risk asbestos materials where the fibres are firmly bound in a matrix but are essentially in good condition (i.e. mostly intact), such as asbestos cement (AC), bitumen products, papers, textiles, small-scale release of asbestos insulating board (AIB) etc will generally not require a licensed contractor”

“However, there may be exceptional circumstances where asbestos cement has been so badly damaged and broken up that the work may become licensable. In these rare cases, a risk assessment will be required to determine if a licence is required”.

“All non-licensed work needs to be carried out with the appropriate controls in place. However, for some types of work, employers must meet additional requirements.  This is known as notifiable non-licensed work (NNLW) and requires employers to:

    • notify work with asbestos to the relevant enforcing authority;
    • designate (identify) areas where the work is being done;
    • ensure medical examinations are carried out; and
    • maintain registers of work (health records)
  1. HSE advises that cement sheets “… which are weathered, but not otherwise substantially damaged will fall within the exemption and will not be NNLW. However, if the work is carried out in such a way that will substantially break up those same sheets (eg by remote mechanical demolition), the exemption will not apply and the work will be NNLW. Also, if the sheets are in such poor condition that it is not possible to remove them without significant break-up/disintegration of the cement matrix, the work is likely to be NNLW”.

What happened

  1. In August 2019 Mr Y and his family stayed at a holiday home in the Council’s area. I will refer to this as ‘the property’. After returning from his trip, Mr Y contacted the Council to report that he had found evidence of asbestos in the car park area of the property, both on the surface of the driveway and buried under a hedge. Mr Y emailed photographs of the suspected asbestos to the Council.
  2. Two working days after the Council received Mr Y’s contact, an Environmental Health Officer (EHO) visited the property to undertake an inspection. The EHO says that nobody was present at the property at the time of his visit. He found some small fragments of material which appeared to be asbestos cement sheeting in the car parking area, as reported by Mr Y. The EHO says he did not discover any buried sheeting.
  3. Shortly after his visit, the EHO spoke with one of the property owners who confirmed that an asbestos cement sheet had been previously moved and accidentally broken in the yard. Although the owner believed that all fragments had been cleared, they accepted some were missed. They agreed to clear the area and the EHO gave advice about safe disposal. The owner also told the EHO that an asbestos survey had been completed 18 months ago.
  4. One week later, the EHO emailed Mr Y with an update on his investigations. He told Mr Y that he did not consider there were any risks, but he would be following up with another visit to the property to read the report and to check the fragments had been cleared. The EHO also told Mr Y that some of the material he saw on the ground was likely to be from concrete piping which did not contain asbestos.
  5. The EHO visited the property again on 6 September. He read the survey report on site and decided it raised no concerns. He checked the external areas and found no signs of any asbestos material.
  6. Mr Y emailed the Council again to further outline his concerns. The EHO responded:

“I have now visited the site and discussed the issue with the owners. I have seen the asbestos report and that gave no cause for any concern. However I am informed that the broken asbestos cement sheet was broken after the report. Efforts were made to clear up the pieces but as you are aware this wasn’t entirely satisfactory. The area has now been cleared but I want to assure you that given the evidence from the photographs provided, and the nature of the material, I would advise that you need not worry unduly regarding this incident. The asbestos content of asbestos cement sheeting is very low and removal of this type of material does not require licensing or a specialist contractor for this reason”.

  1. Mr Y remained concerned about his family’s health following their exposure to the asbestos cement sheeting. He told the Council he had emailed the holiday letting agents to relay his concerns, but the owner of the property denied there being any asbestos on site. The letting agency asked Mr Y to provide evidence to support his complaint.
  2. The Council agreed to email the letting agents, following Mr Y’s request, to relay their findings. The EHO did so on 7 October.
  3. Mr Y was not satisfied with the Council’s report to the agents. He said it underplayed the seriousness of the situation and suggested there was no risk presented to Mr Y and his family. Mr Y told the EHO that he intended to make a formal complaint.
  4. Mr Y submitted his complaint and a list of questions to the EHO’s line manager. Mr Y also requested a face-to-face meeting to discuss his concerns. The Council agreed, and the meeting went ahead on 7 November.
  5. The Council then responded to Mr Y’s complaint at stage one of its corporate complaints procedure on 2 December. In summary, it said:
    • The duty and liability for the asbestos lies with the owner or person in control of the property.
    • The Council acted quickly to inspect and assess risk.
    • The Council acted quickly in asking the owner to remove the fragments. It followed up with a second inspection to ensure compliance.
    • The asbestos survey did not reveal any concerns.
    • The owner was not required to register the asbestos with the HSE because the survey did not identify any risks. There have been no significant changes on the property which warrant a further survey.
  6. Dissatisfied with the response, Mr Y submitted a complaint at the second stage of the complaints process. The Council considered his concerns again but decided it had already issued a full response addressing all the points he raised. The Council reiterated its view that its actions were appropriate in this case.
  7. Mr Y complained to the Ombudsman.

Was there fault in the Council’s actions causing injustice to Mr Y?

Complaints a) and b)

  1. The Ombudsman can only consider the actions of the Council, and any injustice arising from fault in those actions. The safe removal and disposal of asbestos is the responsibility of the property owner. The property owner is therefore liable for any asbestos exposure which Mr Y believes he and his family, the wider public and employees have experienced.
  2. With that said, the Council is the enforcing agency and has the power to take formal action against the person responsible for the property. After considering the available information, in this case I consider the Council acted appropriately and in line with its published ‘Residential Regulation Enforcement Policy’, which says:
    • The Council aims to make first contact with complainants within five working days to fully understand the issues and to arrange an inspection if needed.
    • If an inspection is needed, the Council will aim to undertake it within ten working days. The Council uses a prioritisation system for periods of high demand.
    • Property owners/landlords will be notified in writing of any issues and given a reasonable period to resolve them.
    • The Council will check at the end of the period to establish if the necessary works have been completed.
    • If an informal approach fails, the Council will consider using its formal powers.
  3. Based on the information seen, I find the Council acted quickly to investigate the report made by Mr Y. The Council’s intervention prompted the quick removal of the fragments found by Mr Y and I do not consider there is any fault or delay in the Council’s actions which meant that Mr Y, or others, were placed at risk. It cannot be held responsible for the existence of the asbestos fragments and therefore it is not liable for the injustice Mr Y claims following his family’s exposure to asbestos. Furthermore, the Ombudsman cannot find the Council to be negligent; this would be a matter for the courts to decide.

Complaint c)

  1. The legislation, HSE Code of Practice and associated guidance says the risk from asbestos cement sheeting is usually low, and therefore its removal does not need to be undertaken by a licensed contractor. As paragraphs ten and eleven of this statement set out, the removal of some types of cement sheeting may constitute notifiable non-licensable work (NNLW). This means the person responsible for the property would need to notify the enforcing authority of their intention to remove sheeting if, for example, they, are in such poor condition that it is not possible to remove them without “… significant break-up/disintegration of the cement matrix”.
  2. In response to my enquiries, the Council confirmed its view that the removal of the cement sheeting was not NNLW and so it therefore follows there was no need for the property owner to notify the enforcing authority or to maintain a register of the works. The Council explains it reached this view because it was not evident the cement sheeting was in poor condition at the time it was removed. Instead, it appeared the cement sheeting only broke after it had been removed and was dropped, accidentally, by the person carrying out the works.
  3. I appreciate Mr Y disagrees with the Council’s assessment; however it is not for the Ombudsman to decide whether the work was NNLW or not. This was a decision for the Council to make, as the enforcement agents. I am satisfied the Council made a sound decision taking into account the relevant guidance.
  4. The HSE Code of Practice says that management plans must be reviewed every 12 months; however, it does not say that surveys must be repeated at the same frequency. The Council says it has considered the contents of the surveyor’s report, and it is satisfied the report does not highlight any risks or hidden risks which the Council needed to act upon.
  5. I appreciate Mr Y disagrees with the Council’s conclusion on this point, however as there is no evidence of procedural fault in the way the Council reached this decision, the Ombudsman is unable to challenge it.

Complaint d)

  1. The Council visited the property and wrote to the property owner two working days after Mr Y raised concerns. The EHO also met with the owner to discuss their findings and to ensure that all fragments had been cleared. Therefore, I do not uphold Mr Y’s complaint that the Council failed to discuss the possible dangers with the property owner.

Complaint e)

  1. I have considered the correspondence between the Council, Mr Y, the booking agents, and the property owner. Although the Council often reached conclusions that Mr Y disagreed with, particularly with regards to the level of risk posed by the asbestos, I have seen no evidence that it dismissed his concerns. To the contrary, the Council agreed to meet with Mr Y when he requested a meeting in November 2019.
  2. The EHO’s contact with the booking agency set out his professional opinion of the risk. He also offered a factual account of the events which had taken place. I do not consider the Council frustrated the complaint as Mr Y says.

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Final decision

  1. I have completed my investigation with a finding of no fault for the reasons set out in this statement.

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Investigator's decision on behalf of the Ombudsman

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