Environment Agency

4. Ms A complained about the actions of the Environment Agency and HSE as follows:

Environment Agency:

1. Ms A complains the Environment Agency failed to conduct an appropriate investigation, or take appropriate enforcement action, against companies contracted by her local authority to remove asbestos from her property.

a) The Environment Agency concluded consignment notes issued by one contractor did not meet with the relevant legislation. However, Ms A said the Environment Agency did not take account of evidence she gave it, such as:

· consignment notes that have information missing, have been changed, or appear to have been tampered with, and do not meet the standards in the regulations

· consignment notes that do not show where the waste was stored before disposal, and do not account for where the waste was for long periods

· consignment notes that show the waste was disposed of at a transfer facility

· inconsistencies between the consignment notes and the Environmental Permit

· the lack of any consignment notes for asbestos removed when she had new light fittings put in in April 2018

· inconsistencies between amounts of Asbestos Containing Materials (ACMs) removed from her home, and the weights recorded on consignment notes

· inconsistencies between the weights and number of bags of asbestos removed from her house, and between those and the Environment Agency’s ‘accepted’ system of calculating weight

· the Environment Agency’s irrational use of the transfer facility’s records to justify information given by the contractor

· evidence from the waste transfer facility that they would not accept consignment notes with missing information, when it did do that in her case.

Ms A says the Environment Agency did not recognise these failures, meaning there was no assurance the asbestos waste removed from her property was properly accounted for, or the waste had all been disposed of legally.

b) Ms A says the Environment Agency’s responses have been contradictory. She says it has not provided sufficient information about its decisions or why it did not act on the serious failings it found. She believes this shows the failings in her case were not an isolated incident.

c) Ms A complains the Environment Agency did not give her the information she asked for during its investigation.

HSE:

2. Ms A complained to HSE that her landlord had not acted in accordance with the law, or national guidance, when telling her about asbestos in her home or warning her of the risks of this. She says she told HSE she was moved into a hazardous property and work was only carried out to make it safe after she overheard a workman talking about asbestos. She says she and other workmen worked on areas of her home that contained asbestos, with no knowledge of where the asbestos was, or the proper processes for removing, or disposing of it.

a) Ms A complains HSE did not undertake a full investigation of the circumstances in her particular case. She says in deciding not to conduct a full investigation, HSE has not taken into account a number of important facts, including:

· HSE failed to act on her online complaint in time to collect contemporaneous evidence

· she has timed and dated photographic evidence of asbestos being left in a disturbed and damaged state, and left for her to clean up

· asbestos was removed from her house without any of the paperwork required for non-licensed, or licensed, work. Where there was paperwork, she says there is evidence this was falsified

· she has evidence which she thinks suggests the work undertaken in her home should have been licensed but was undertaken as non-licensed work, or not treated as asbestos removal at all (for example, the removal of a water tank)

· she has evidence the workers removing asbestos from her home were not properly trained or qualified, and her landlord stopped using them due to reported poor standards

· she has evidence contractors who handled the removal of the asbestos were not given the appropriate documentation by her landlord

· she has evidence that her landlord was not adhering to their written policies, or HSE guidance, because they did not tell tenants about asbestos in their homes or how they assessed any risk

· HSE did not take into account air quality tests carried out by her landlord, which would appear to show she and her children were put at risk

· the Environment Agency found multiple failings by the contractor who removed the asbestos, but the scale of that was not taken into account by HSE

· there were a number of incidents, and she has evidence that these failings are ongoing

· there was a significant and lasting impact on herself and her children

She says, as a result, HSE did not take appropriate enforcement action regarding the offences she believes occurred.

b) Ms A says HSE did not carry out its role in accordance with its own policy and guidance. She says it has failed to provide reasons for its decisions, with reference to the appropriate policy and legislation. She says its responses to her have been contradictory.

c) Ms A says HSE has also failed to provide her with the information she asked for about its investigation.

5. Ms A says the failings of HSE, and the Environment Agency, have caused her distress, and have left her with no assurance the asbestos in her home was managed properly. She has no assurance it will be managed properly in future. This means she has concerns about her health and that of her children, in particular the health of her son, who has a rare lung condition. She has additional concerns after seeing reports that deaths from asbestos exposure have been increasing.

6. The outcome of the HSE and Environment Agency investigations were also used in a report by the Housing Ombudsman, which subsequently did not uphold her complaint. Ms A is concerned the investigations influenced that report.

7. Ms A seeks assurances appropriate enforcement action will be taken to ensure future good handling of asbestos in her home.

8. Ms A viewed a council owned property, with a view to renting it, on 30 January 2018. She noticed there were holes in a panel under the bathroom sink. The Council told her the panels would be staying as they were. There were also other cosmetic issues with the property, and the Council told Ms A they would be fixed before she moved in.

9. On 29 January 2018, the Council did an asbestos survey on the property. The survey identified a number of materials containing asbestos in the property including: Artex coatings on the kitchen walls and ceiling; asbestos containing vinyl floor tiles in the bathroom and kitchen; wooden battens attached to Artex coatings on the kitchen walls; asbestos insulating board (AIB) in the hallway and behind the toilet in her bathroom. The Council did not tell Ms A her property contained asbestos materials.

10. When Ms A moved in on 28 February 2018, the kitchen and bathroom tiles had been removed, the kitchen ceiling had been skimmed over, and some of the wood cladding had been removed from the kitchen walls. Where cladding had been removed, she saw a large hole in the wall, which she now understands had Artex coating on, and which had since been filled in.

11. Ms A says she found out about the asbestos by chance when a plumber came to fix her bathroom sink on 5 March 2018. He said he was concerned the panel behind the bathroom sink was AIB. She made the plumber stop work and insisted future works be carried out with asbestos controls, including the replacement of the panel, the removal of the battens in the kitchen, and moving the ceiling light fittings in a number of rooms.

12. Concerned about the lack of information about asbestos in her home, Ms A asked the Council for the paperwork associated with the works that had been done before she moved in. She was expecting to receive consignment notes that recorded the movement of asbestos waste from her home to a disposal site. She was also expecting to see risk assessments and work plans for each of the works carried out. This was in accordance with the relevant law and guidance.

13. The Council gave Ms A two consignment notes – one for 14 February 2018 and one for 8 March 2018. The Council gave her ‘notifications of work’ that a contractor had done (with asbestos controls) on these dates. The first was for the removal of kitchen tiles. The second was for the removal of battens on the kitchen walls that had been removed under asbestos conditions, at her insistence. The Council had no other paperwork for any of the other works supposedly done before she moved in. She later discovered there were two versions of the 14 February consignment notes, each stating a different number of bags of asbestos waste removed from her home.

14. Th Council’s contractor moved some light fittings for Ms A in early April 2018. The Council gave her work plans for those works, but no consignment notes.

15. Ms A asked the Council to inspect her loft in early 2019. She had previously been told by the Council that the loft was safe to use for storage. The Council found broken pieces of asbestos cement board that it had not identified on the asbestos survey, along with an asbestos insulated hot water tank. Ms A says the asbestos cement board was in a very poor state.

16. Ms A made further enquiries to the Council about the consignment notes and the work done in her home. She also found more irregularities with the consignment notes. She also experienced further issues with workers contracted by the Council apparently not knowing there was asbestos in her home when they came to do work, or being openly disgruntled about having to work with asbestos.

17. On 15 March 2018, Ms A reported a concern to HSE about the works done and the risk of asbestos being released into her home. Despite HSE recording the concern and giving Ms A a reference number, HSE took no action.

18. Ms A contacted her MP, who wrote to HSE on 14 December 2018. HSE then decided to undertake an inspection of the Council rather than a full investigation of the work done on Ms A’s home.

19. Ms A subsequently complained to the Environment Agency in May 2019. As a result of her complaints, the Environment Agency did an inspection of the Council’s contractors. The Environment Agency gave them advice and guidance and issued a warning for breaches of the Regulations. It did not investigate, or act on, the specific circumstances Ms A had raised.

Complaint 1 a) the Environment Agency failed to conduct an appropriate investigation or take appropriate enforcement action

22. Ms A complained to the Environment Agency about the poor completion of the consignment notes, relating to asbestos waste the Contractor removed from her home. She was concerned that the Contractor’s poor completion of the consignment notes gave her no reassurance or information about what asbestos waste had been removed from her home, whether it had been properly identified and labelled, or properly disposed of. She was also concerned that the poorly completed consignment notes were being accepted by the transfer facility where the asbestos was being taken before being disposed of, even though the manager of that facility said that he would reject them.

23. ACMs are considered to be hazardous waste. The Hazardous Waste Regulations: paragraph 35, sets out that a consignment note must be completed for every movement of hazardous waste.

24. A consignment note must contain specific information including:

· a unique code that identifies the waste producer (in this case the Contractor who did the works on Ms A’s property) and the property/place the waste was removed from

· the addresses of where the waste was removed from and taken to

· details (name and address) of the waste producer

· a description of the waste, using specific codes, including the weight of the waste and the number and type of containers it is in.

25. The Environment Agency told us a consignment note must be completed in a sequence that supports the ‘chain of custody’ of the hazardous waste:

1) The consignor (the person handing over the waste, in this case the Contractor) declares who produced the waste, where the waste was produced, and where it is going in Part A of the note. The consignor also completes Part B, which describes the waste being handed over.

2) The waste carrier (in this case, the carrier was also employed by the Contractor) must then verify the information in Parts A and B are correct. They complete Part C to confirm they are accepting the waste as described in Parts A and B.

3) The consignor then completes Part D to acknowledge they are handing the waste described in Parts A and B to the waste carrier described in Part C. The consignor then keeps one of the three copies, and the waste carrier takes two. This retained copy then acts as a receipt from the waste carrier.

4) The waste carrier then takes the waste to the authorised facility (the consignee). The authorised facility checks the details within the consignment note and, if they are satisfied the details are correct, accepts the waste and completes Part E on both copies of the consignment note keeping one and handing the other back to the waste carrier for their records.

5) The authorised facility must provide a copy of a completed consignment note (or a summary record) to the original producer to confirm they have received the waste, which completes the chain of custody.

6) If the consignment note is not completed properly and, in particular, does not describe the waste being transferred, the consignee should refuse the waste and keep a record of that refusal. The waste producer is then responsible for disposal of the waste with a properly completed consignment note.

26. A separate consignment note must be completed for each movement of waste.

27. The Non-Waste Framework Directive (NWFD) 3 allows the storage of up to 50 cubic metres of waste, which can include bonded asbestos (asbestos contained in other materials) also known as ACM (Asbestos Containing Material) at a secure premises owned by the producer of waste for up to three months. No permit or registration is required for this. When the waste is moved from there, another consignment note has to be completed. However, this will not contain the address/addresses of all the places where the waste was initially produced.

28. A consignment note can refer to a collection on a ‘round’. This is where waste is collected from multiple sites in one journey and delivered to one consignee. There is still a separate consignment note for each collection. The fact it was on a multiple round is recorded on the consignment note with a round number, and the number of the collection. For example, collection number 5 on round 233 could be recorded 233/5).

29. Consignment notes, or copies of them, must be kept for three years.

30. Producers of waste are no longer required to be registered with the Environment Agency. Hazardous Waste produced at a domestic property by a third party contractor must comply with the requirements of the Hazardous Waste Regulations, which require a consignment note to be completed.

31. The Hazardous Waste Regulations require the consignee submits quarterly returns to the Environment Agency about the amounts of waste received. In this case, the Contractor should have informed the Environment Agency about the amounts of waste received at its premises/storage site (in accordance with the NWFD 3) from the domestic properties where the waste was generated. When the Contractor moved the waste from its premises to an asbestos transfer facility (a facility that accepts the waste before being transferred to a disposal site), it should have notified the Environment Agency. The Environment Agency should also be notified of movements from the transfer site to disposal site. In this way, the Environment Agency should be able to track and check whether all the asbestos waste that has been produced has eventually been disposed of at an authorised disposal site. This is because the weights of the waste produced and transported are recorded on the consignment notes.

32. The Environment Agency said quarterly returns are done by completing a spreadsheet return. There is a fee for making a return. This is £10 for reporting a single collection of asbestos waste, and £5 for reporting a multiple round collection.

33. In the course of her complaint to the Environment Agency, Ms A provided the Environment Agency with evidence about the works done to her home and the consignment notes she had received. In particular:

a. two consignment notes with the same ‘unique’ code dated 14 February 2018, showing a different number of bags of asbestos waste produced, and different weights

b. consignment notes where the declarations by the waste carrier and the consignee were not consecutive in time, or the dates and times appeared to be tampered with

c. consignment notes she had been given that did not include her address as the place the waste had been produced

d. plans of work for the relocation of light fittings for which she had no corresponding consignment notes

e. details and photographs of other work with asbestos including the removal of bathroom tiles, removal of ceiling frame, and removal of wood cladding the Contractor had done, for which there were no corresponding consignment notes

f. evidence of correspondence from the waste transfer site where her waste was reportedly taken to, which said the facility would not have accepted consignment notes with the errors her consignment notes had.

34. On receipt of Ms A’s concerns about the consignment notes she had been given for the works to her home, the Environment Agency carried out an inspection of the Contractor’s secure premises, where it was temporarily storing waste. The Environment Agency also conducted an audit of its own records, and the consignment notes kept by the Contractor.

35. As a result of its inspection, the Environment Agency found the following failings (as recorded in its case management system) with respect to compliance with the Hazardous Waste Regulations 2005 (sections 35, 36 and 53).

‘The [contractor] were not including the required information within the sections specified of the consignment note specifically the weight of the asbestos collected and the time this was collected.’

‘The [contractor] was pre-completing [Part D] before the waste carrier had completed the carriers certificate (Part C) The sections are to be completed in sequence, first Part C which is the carriers declaration that they have received the waste describe in Part B from the person and location in Part A, then Part D which is the current holder declaration that they have handed [the] waste to the waste carrier described in Part C. To pre-complete Part D is incorrect.’

‘The {contractor] had misreported on consignee returns a) the amount of waste received during each quarter - which was based on an estimate and b) that the movements were incorrectly under multiple collections when in fact these were made under single movements.’

36. The Environment Agency file shows that it issued a warning letter to the Contractor regarding these offences. The Environment Agency investigation manual says a warning is a response to what it believes is a criminal offence. The Environment Agency case management record shows that it considered these offences to be paperwork offences. Ms A disputes these were paperwork offences for the reasons set out in paragraph 39. The Environment Agency required the Contractor to take detailed compliance action, to bring the actions of the company back into compliance with the law. We have seen the Environment Agency’s files about this. The compliance actions it required included:

· proper completion of consignment notes

· new procedures for the recording of multiple collection rounds

· investigations into absent consignment notes

· investigations into two occasions when waste should not have been stored at the contractor’s premises, yet was recorded as being stored there

· better labelling of storage on site

· new management procedures, training programme for staff, and a programme of checks for compliance

37. The Environment Agency files shows that it followed up on the actions taken by the Contractor. The Environment Agency required more work to be done when the actions taken by the Contractor were not robust enough to ensure it would remain in compliance with the law.

38. Ms A said the failings identified by the Environment Agency, and the specific circumstances she highlighted (paragraph 33), showed evidence the Contractor was misrepresenting waste (recording wrong codes and wrong weights). She pointed out that the Environment Agency could have no assurance the weight of asbestos it had recorded as being removed from her home was accurate. This would mean some asbestos could be being disposed of as non-hazardous waste. She said the Contractor was motivated by financial gain. She said the Environment Agency had used information from the weights of waste deposited at the transfer site as evidence the waste was properly disposed of. She said the fact some waste may not have been disposed of properly would not have been apparent in the audit trail of consignment notes, because she had evidence that the transfer site accepted poorly completed consignment notes (the ones she had that contained mistakes) and did not refuse waste when it should have. She also highlighted the fact the Contractor had been unable to produce consignment notes for some of the works done in her home, to remove asbestos. This suggested the waste may not have been categorized/disposed of as asbestos, and was moved without a consignment note, which was against the Hazardous Waste Regulations.

39. We have looked at the Environment Agency’s choice of enforcement option, including the evidence it had regarding the misrepresentation of waste.

40. The Environment Agency did not include in its inspection the specific circumstances Ms A had raised with it. The Environment Agency’s Offence Response Options (ORO): section 5, lists the types of enforcement action the Environment Agency can take regarding breaches of the Hazardous Waste Regulations. Offences involved in the incorrect completion of consignment notes (paragraphs 34, 35 and 36 of the Regulations) are summary only offences. The ORO says the standard criminal and offence specific response the Environment Agency could use are warning, formal caution, prosecution, or fixed penalty notice. The Environment Agency can also use civil sanctions for these offences. However, the Environment Agency’s Investigation Manual explains that for a summons to court, a summary offence has to be presented to court within six months of the offence.

41. The Environment Agency told us this time limit was part of the reason why it did not look at the particular issues with the consignment notes Ms A had shown them. The Environment Agency also explained its inspection had found evidence of the same errors and omissions Ms A had provided evidence about.

42. In accordance with the Ombudsman’s Principles, organisations should take all relevant considerations into account when reaching decisions. The time limit was an appropriate consideration. Ms A complained to the Environment Agency one year after the alleged offences occurred. That would have prevented the Environment Agency from acting in response to any evidence Ms A may have had regarding irregularities in the completion of consignment notes.

43. However, as described in paragraph 38, Ms A also thought she had evidence of the misrepresentation and incorrect movement and disposal of waste, particularly in light of the fact there were no consignment notes for some of the works done on her property. The Environment Agency could not prosecute this type of offence beyond 6 months.

44. The Environment Agency’s case management record shows it concluded that the offences it found in its inspection were paperwork offences. The Environment Agency also told Ms A this. It said it did not have evidence of the misrepresentation, or incorrect disposal, of waste. The Environment Agency’s case management record does not explain specifically why it did not consider this was the case. We therefore considered this as part of our investigation.

45. During our investigation, we asked the Environment Agency to explain its rationale for deciding that the offences it had found were only paperwork offences, particularly given some of the evidence from Ms A. The Environment Agency explained that part of the compliance actions it required the Contractor to take were to provide explanations for missing consignment notes, and for records of consignment notes that had not been reported to the Environment Agency. It also asked the Contractor for explanations about why some consignment notes had descriptions of waste that should not have been stored at the Contractor’s facility, under the NWFD 3.

46. The Environment Agency told us the Contractor was able to provide reasonable explanations for the errors and omissions in the consignment notes. These were explained mostly by paperwork errors when completing the consignment notes. In particular, the Contractor explained that missing consignment notes identified in the audit were from cancelled, or re-arranged jobs and provided evidence to support that. The Environment Agency accepted that the missing consignment notes it had identified were not evidence of incorrect movement, or disposal of waste. We asked the Environment Agency why it did not investigate the missing consignment notes from works done on Ms A’s property, as these would appear to show that consignment notes were missing, even when a job was not cancelled. The Environment Agency told us that in the context of the other evidence, it did not think it would gain sufficient evidence from that line of enquiry to support a finding that the waste had been misrepresented, or incorrectly disposed of.

47. We asked what other evidence the Environment Agency looked at. The Environment Agency told us when looking for evidence involving the misrepresentation or incorrect disposal of waste, it would look for the following:

· evidence of things such as fly-tipping in the local area

· issues in the waste streams of permitted transfer and disposal waste facilities (facilities that require an environmental permit)

· evidence of very erratic returns being submitted, or no returns being made at all by a company potentially involved in the movement of asbestos waste.

48. The Environment Agency had not seen evidence of any of these things in this instance.

49. The Environment Agency said both the transfer and onward disposal sites the Contractor was using were operating under environmental permits. These sites were therefore regularly inspected to ensure compliance with the limits on the types and volumes of waste they could accept. The Environment Agency has provided us with recent inspections of those sites, which do not demonstrate any concerns they were disposing of asbestos waste incorrectly. The Environment Agency said the returns of the transfer site showed that the Contractor had been depositing asbestos waste there on a weekly basis over a number of years.

50. The Environment Agency also told us paperwork issues were very common in the waste sector. Levels of literacy within the sector were often low. Most often this would lead to mistakes and errors in completing paperwork, rather than errors and omissions being caused by a deliberate attempt to mislead. In response to our provisional view, Ms A told us that the evidence she had on her consignment notes was evidence of alterations, and the notes being pre-filled by the same person. She says this is not just ‘spelling mistakes’. However, when referring to literacy, the Environment Agency is not referring to spelling mistakes, it refers to the ability to complete a form correctly and in accordance with the Regulations (for example, completing the right sections or completing it without needing to make an alteration). While we understand Ms A’s concerns, we accept that literacy was a relevant consideration for the Environment Agency.

51. We asked the Environment Agency about the potential financial gain to the Contractor in under-reporting the amount of asbestos waste it disposed of. The Environment Agency said there was a possible financial gain in avoiding the gate fees at the transfer or disposal sites. However, the Environment Agency said the Contractor had been depositing waste and had regularly been declaring sizeable amounts of asbestos waste, over a number of years. It said this was not in accordance with a pattern of trying to secure a financial gain. The Environment Agency also told us that the financial gain in misreporting some of the collections as multiple rounds, rather than single rounds, was marginal. In response to our provisional view, Ms A pointed out that there was a significant financial gain to the Council in not employing licensed firms to do asbestos removal. However, the Environment Agency has no remit to look at the actions of the Council in this instance.

52. Finally, the Environment Agency told us the Contractor was very willing to work with it to come into compliance. The Contractor came into compliance very quickly. The Environment Agency explained, generally, it would be more concerned about companies that were not submitting any returns to the Environment Agency at all. Alongside being willing to work with the Environment Agency, the Contractor had been submitting returns for sizable amounts of asbestos waste every month, over a number of years. This suggested to the Environment Agency it was attempting to comply with the law, rather than avoid it.

53. However, the Environment Agency told us it accepted it could not have complete assurance all the waste being produced was being deposited at a permitted facility, because of the way in which the Contractor was estimating the weight of asbestos waste. This is because of the errors and omissions by the Contractor when completing consignment notes.

54. The Environment Agency also accepted it could not say definitively what weight of Asbestos Containing Materials were removed from Ms A’s house. This is because the Contractor was filling in the weights after the waste had been deposited at the transfer site. The Contractor would simply weigh the waste on arrival at the transfer site, and then divide the weight by the number of bags of waste on the consignment note. It would then back-fill all the individual consignment notes relating to that deposit of waste. Given different ACMs are different weights and sizes two bags of waste cannot be the same. Therefore, the audit trail was unreliable. Ms A pointed out to us that this meant that it was still possible the Contractor was disposing of some waste incorrectly.

55. The Environment Agency accepted what Ms A said. However, it also told us it had to be mindful of its duty in accordance with the Regulator’s Code, paragraph 1, to be proportionate and mindful to the growth principle when deciding where to direct resources. The other evidence it had available to it demonstrated it was unlikely the Contractor was misrepresenting waste, or moving or disposing of it incorrectly. For the reasons in this paragraph, and those above, we are satisfied the Environment Agency took relevant considerations into account and balanced the evidence appropriately when deciding the offences were paperwork offences.

56. We also looked at whether the Environment Agency took relevant considerations into account when deciding on a sanction. The Environment Agency told us bonded asbestos was considered to be attached to a lower risk of harm both to the environment and human health. The legislation, Regulations, and exemptions to those, did not require the Environment Agency to undertake any regular inspection of companies such as the Contractor in the production and movement of bonded asbestos waste. The Environment Agency explained bonded asbestos was not a regulatory priority for it.

57. The Regulator’s Code sections 1,2 and 3, and the Environment Agency’s Enforcement and Sanctions Policy: section 4, say enforcement responses should be proportionate to the offence and the risk of or harm done to the environment. They say the Environment Agency should take account of the business environment, cost to business of regulatory activity, and of other issues such as the stigma of criminal conviction. They say the Environment Agency should take a risk-based approach, directing its resources to the issues of the highest risk to the environment and human health.

58. The Environment Agency’s Enforcement and Sanctions Policy: section 7, also describes the interventions it can take, ranging from advice and guidance, issuing warnings, to civil sanctions and prosecution. Section 8.1.1 of the Policy explains the public interest factors the Environment Agency will take account of when choosing a sanction. These include things such as intent of the offender, their potential financial gain from offending, the degree of risk to the environment, the attitude of the offender, the history of offending, and whether the offence prevents the Environment Agency from carrying out its role.

59. Ms A is clearly concerned about the risk of asbestos fibres being released into her home and surroundings, because of them not being disposed of properly. No one should diminish that risk. This is why the removal and transport of asbestos is controlled by legislation. However, the exemptions for producers and carriers of bonded asbestos waste show this is a lower risk activity.

60. The Environment Agency has explained in detail why it chose the sanction it did. It considered the Contractor’s intent, financial gain, risk to the environment, and the attitude of the offender. These were all considerations the Environment Agency and government guidance required it to take into account. This was also in accordance with the Ombudsman’s Principles that all relevant considerations should be taken into account. The Principles also require organisations to balance the evidence appropriately. We have explained above why the Environment Agency balanced the evidence in a reasonable way when deciding to issue a warning for paperwork offences. We find the reasons it has given weigh up the different considerations appropriately.

61. For all the reasons in the paragraphs above, the Environment Agency conducted an investigation and took enforcement action in accordance with the relevant guidance and legislation.

Complaint 1b) the Environment Agency’s responses were contradictory, did not provide sufficient information about its decisions or act on the serious failings it found

62. The Environment Agency responded to Ms A’s detailed questions about the issues she raised in four responses. These responses answered each of her queries in turn. Broadly, the Environment Agency explained it had chosen to undertake an audit, which had found widespread issues with the completion of consignment notes by the Contractor. The Environment Agency explained those omissions and errors related to the recording of where the waste was produced, the recording of weight, mis-reporting collection rounds as multiple rounds, and errors arising from the Contractor pre-filling some sections of the consignment notes. The Environment Agency explained the regulatory action it had taken, but not in detail.

63. The Environment Agency told Ms A if it found evidence of the misrepresentation of waste then it could take further action. However, it appears to have failed to understand Ms A’s main concern was that she thought her evidence showed this was happening. In an apparent attempt to be helpful, the Environment Agency told Ms A the weight it had recorded for the asbestos waste removed from her home, on one occasion, appeared to be right. However, that clearly only left Ms A with the impression the Environment Agency had not understood that it could not rely on the weights being provided to it, or that the transfer site may not have noticed it was receiving mislabelled waste because it was accepting non complaint consignment notes.

64. During the course of this investigation, the Environment Agency has acknowledged it had no assurance about the weights of asbestos waste removed from Ms A’s property. It has also explained (as described in paragraphs 47 to 51) why it did not think the issues with the consignment notes were evidence of the misrepresentation of waste. During this investigation, we have also seen the Environment Agency files show it took significant steps to ensure the Contractor took actions to achieve compliance. However, the complaint responses to Ms A do not reflect these things.

65. The Ombudsman’s Principles of Good Complaint Handling say complaint responses should be customer focused. Organisations should listen to complainant’s views and make sure they understand the complaint.

66. The Environment Agency spoke with Ms A and responded to her in writing. The detail in the responses show it tried to respond to each of Ms A’s concerns in turn. However, the Environment Agency did not explain in detail – as it has to us – why, on balance, it did not think the problems it had found with the consignment notes were indicative of misrepresentation of waste. It also did not explain in detail why the evidence Ms A had collected would not be able to show there had been misrepresentation of waste, or why further investigation of her particular circumstances would unlikely be a proportionate action.

67. The Environment Agency probably did not clearly understand Ms A’s main concern. However, Ms A’s emails to the Agency were often detailed and focussed on very specific issues. With the benefit of hindsight, it is clear it would have been better if the Environment Agency had taken steps to ensure it had listened to Ms A’s views, and was responding to the issues of most concern to Ms A. However, this would not necessarily have been obvious at the time. We do not think this is a failing so significant we would consider it to be maladministration.

Complaint 1 c) the Environment Agency did not give Ms A the information she asked for during its investigation

68. As we have explained in paragraph 66, the Environment Agency made reasonable attempts to respond to Ms A’s concerns. There was information missing from its responses, but it has now provided this to us. However, it would not have been the information Ms A wanted (for example the weights of asbestos removed from her property, reasons for missing consignment notes, or explanations about the transfer site accepting non-compliant consignment notes) because it had decided it would not be proportionate to investigate those issues. We have not found evidence of a failing here.

Complaint 2 a) HSE did not undertake a full investigation of the circumstances in Ms A’s particular case and did not take account of a number of important facts

69. In response to Ms A’s concern that asbestos had been removed from her home without proper controls in place, HSE inspected the Council. It did that on 20 March 2019. This was a year after Ms A had first raised her concern, on 15 March 2018. The delay was caused by HSE not recording her concern properly and making sure it was triaged and acted upon. HSE said this was due to a staff error and apologised for it. Ms A told us she does not accept this explanation because she recorded her concern online and obtained a reference number. However, that does not prevent HSE making a mistake when it processed that concern, and the explanation she has been given is appropriate.

70. We have seen HSE’s records of its inspection. They show HSE found the Council was compliant with legislation. They show HSE found management surveys were done on all void properties, and refurbishment and demolition surveys were done on properties needing major work. These allowed the Council to identify and monitor the asbestos in the properties. At the time of the inspection, the Council had recently introduced a new IT system. Surveys were recorded on the system, which was accessible to contractors. The Council reviewed their contractors’ asbestos policies, and had an external company to audit both those, and the Council’s own policies. The Council also conducted random checks and audits on work done and being done in its properties, to ensure the right controls were in place. HSE provided some advice, to improve compliance, about:

· formalising and recording the checks done on asbestos and the condition of ACMs

· creating a new asbestos management plan

· formalising contractors’ actions in respect of non-licensed works

· ensuring the Council asbestos database stated whether work was licensed or unlicensed

71. HSE shared the results of its inspection with Ms A during a meeting on 8 May 2019. It followed this up with emails on 20 and 22 May 2019 to her MP’s office and to her. During the meeting, and in the emails, HSE explained the evidence Ms A had provided was not sufficient for it to investigate the specific circumstances around how asbestos was removed from her home. That evidence included:

· timed and dated photographs of asbestos being left in a disturbed and damaged state (in particular an AIB with holes in it)

· asbestos being removed from her house without any of the paperwork required

· evidence that workers removing asbestos from her home were not properly trained or qualified

· work plans and photographs to show contractors removed asbestos before the asbestos survey was done on her property

· information about asbestos being found in her loft long after the survey had been done

72. HSE said photographs could not show the work was carried out without proper controls. It said to take enforcement action, it would have to show there had been a release of asbestos fibres when work was done. HSE explained to Ms A that the risk of releasing asbestos fibres from bonded asbestos was very low, and asbestos would need to be ground down to release fibres. It said this was unlikely in activities such as removing floor tiles. HSE said it had to direct its regulatory responses to activities carrying the highest risks. In respect of the Council’s responsibilities in Ms A’s case, HSE explained the Council was not required to do an asbestos survey of every property. Rather, it could gain an understanding of where asbestos should be assumed to be, based on information from other, similar properties. HSE also explained the law did not require non-licensed work to have any ‘certificate of cleanliness’ to say it had been done properly, or air tests after the work had been done. HSE said risk assessments were required to be done before undertaking work on asbestos.

73. Following its meeting with Ms A, HSE said it would do an audit of the Contractor’s workers to check they had been adequately trained. HSE conducted a survey of 20% of the workers undertaking asbestos work. HSE asked for verification the workers had asbestos training and asked them questions about it. HSE said it was satisfied its survey showed workers had been appropriately trained (we have explained more about the survey in paragraph 99).

74. Ms A says her evidence shows there was a risk work with asbestos was not, or would not be, carried out properly in the Council’s properties. She said her evidence shows there was a risk of this. She believes more should have been done given that risk. We have therefore considered whether HSE took relevant considerations into account, balanced the evidence appropriately, and made a reasonable decision in accordance with the Ombudsman’s Principles.

75. The Control of Asbestos Regulations 2012, sections 5, 6 and 11, and the Health and Safety at Work Act 1974, section 3, require duty holders (like the Council and the Contractor in this case) to have the proper controls in place to understand the risks from asbestos in their properties to make sure the people working in those properties are properly informed about the asbestos, and to minimise the risks from asbestos as a result of that work. They require a survey to be carried out before any demolition or refurbishment.

76. The Control of Asbestos Regulations, section 2, also describes when work on asbestos is ‘licensable’. Licensable work is work that is more than ‘sporadic or of low intensity’, or where the risk assessment cannot demonstrate that the control limit (the concentration of asbestos in the atmosphere being 0.1 fibres per cm3, averaged over 4 hours) will not be exceeded.

77. HSE has detailed guidance called Asbestos Essentials. This describes the different types of work which may be done under non-licensed asbestos conditions, and how to complete that work. Non-licensed work includes work on bonded asbestos floor tiles, Artex coatings, and works of short duration on AIB (such as unscrewing an entire panel or drilling a hole for a cable). Asbestos Essentials describes the types of controls and precautions that need to be taken when carrying out work on those materials to comply with legislation.

78. Asbestos Essentials also explains non-licensed work needs a risk assessment and a work plan to be done before works can be carried out, as set out in section of The Control of Asbestos Regulations section 7. These documents have to be kept on site for the duration of the work. There is no requirement to retain them after the work is done. In Ms A’s case, the Council would not be responsible for doing a risk assessment, or work plan, unless one of its own employees was doing the work. In Ms A’s case, the Contractor was responsible for doing them.

79. HSE’s Operational Procedure - complaints and investigations, describes what and how the HSE can investigate, and the way it decides that. Section 2 of the complaints procedure explains HSE will investigate all concerns in its remit, provided they present a level of risk described as amber or red on the HSE risk matrix. The risk matrix produces a risk rating by looking at: the seriousness of the possible injury or harm to health as a result of an incident; the number of people affected at one time; and the likelihood of the risk occurring. The investigation procedure (page 4, ‘Criteria for Decision-Making’) says even if a risk is considered amber or red, HSE will not investigate if it is not practical to do so.

80. The work Ms A said was done in her home without the proper controls appears to have been non-licensed work. Ms A says the AIB in her bathroom was licensable work, but this was not necessarily the case (as described in paragraph 76). Ms A does not accept the work she was complaining about should have been described as low risk by HSE. However, the Regulations make a distinction between licensable and non-licensable work, on the basis of the concentration of asbestos fibres that will be released by doing that work and the duration someone will be exposed to it. Licensable work is higher risk and therefore more stringent controls are required when doing it. HSE were ‘taking all relevant considerations into account’ when taking account of the fact the work done on her home was very unlikely to release asbestos fibres, and thus describing it as low risk.

81. However, HSE’s decision about what to investigate was not solely based on risk. It was based on the fact there was insufficient evidence. This was a consideration for HSE, in accordance with its investigation procedure. That says HSE will not investigate if it is not practical to do so.

82. Ms A says she provided ample evidence in the form of timed and dated photographs, dated work plans, and incorrect or absent paperwork. We have seen HSE’s files contain copies of the photographs Ms A had taken of the asbestos in her home, and other evidence she submitted, including plans of works and her comments on the lack of paperwork. In its responses to Ms A, HSE referred to these pieces of evidence and took them into account.

83. HSE not only took into account Ms A’s evidence, but also balanced this evidence appropriately, and came to a reasonable decision about it. This is in accordance with the Ombudsman’s Principles. The following paragraphs explain why.

84. The photographs could not show how, or when, work was carried out in her property, or what controls were in place at the time. Some of the work plans and photographs might have suggested work had been done on Ms A’s property before the asbestos survey was carried out on 30 January 2018. However, HSE explained that there were no requirements for the Council to survey every property before carrying out work. The Council only had to understand the risks from asbestos in their properties, and this could be gained from a sample of surveys.

85. While it was clear Ms A had been given no risk assessments or worksheets for all the works done, that in itself would not appear to be strong evidence of non-compliance. This is because risk assessments were not required to be kept. Ms A does not accept that it is reasonable that there was no paperwork to evidence the work carried out on her property. She says that this is something any Contractor would need to have. We agree. We have seen spreadsheets of asbestos work kept by the Contractor, and another by the Council, but we understand that these do not necessarily refer to all the individual works Ms A saw being done on her home (for example removing cladding in her kitchen before she moved in). This leaves it unclear whether some jobs were carried out in a compliant way. However, detailed records like Ms A expected to see are not required under the Regulations that are enforced by HSE. The accuracy of the spreadsheets held by the Contractor and the Council would not be something HSE had remit to look into. It would not give HSE any more information about whether there was any asbestos spread at the time those works were carried out.

86. We accept Ms A’s point that HSE could have potentially discovered what controls were in place during the works on her home over the course of an investigation. However, HSE policies, and the Regulator’s Code, paragraphs 1 and 3, are specific in that regulators should be proportionate, and direct their activities on the basis of risk. HSE had no evidence (it could collect) to show asbestos fibres had been released. Even if it could demonstrate the work was not done properly, it could not demonstrate any evidence of harm or risk to health.

87. Instead of undertaking a full investigation, HSE went on to consider the controls and processes in place at the Council. This action addresses any potential risk to human health arising from a lack of controls within the Council. The inspection took account of the concerns Ms A had raised regarding issues in the processes of surveying, informing contractors of asbestos risks, and training. In accordance with the Ombudsman’s Principles, HSE looked at the evidence Ms A provided to it, took relevant considerations into account, and acted proportionately in accordance with its guidance, and the Regulator’s Code.

88. Ms A said HSE failed to respond to her concern when she raised it in March 2018. She says this was closer to the time of the works done on her property, and therefore asks whether HSE would have said she had ‘insufficient evidence’ then. HSE told her it would not have acted any differently. This is a reasonable comment. It is in accordance with the reasons HSE had given for not investigating her individual case. The potential risks involved, and the opportunities for collecting evidence, were similar whether they were in the recent past, or much older.

89. Ms A also told us HSE failed to take account of the ongoing nature of these incidents as she experienced them over a year or more. HSE acknowledged it could only provide assurance about the controls in place at the time of the inspection. We have seen HSE’s records of its inspection (paragraph 70). These show HSE inspected the controls the Council had in place as of 20 March 2019. We have not seen any evidence Ms A has submitted that would contradict HSE’s findings on that date.

90. Ms A also said HSE did not take into account the air quality tests taken in her home. We have seen the air quality tests done on Ms A’s property, and these are in HSE’s file. None of these show a level of asbestos above the control limit.

91. Ms A also told us that she informed HSE the Contractor had not been completing consignment notes. HSE referred her to the Environment Agency about this. Ms A said HSE did not take account of what the Environment Agency then found, in respect of the wider failure of the Contractor to complete consignment notes. We recognise this is the case. However, this failing was not brought to the attention of HSE. It is also not clear it would have caused HSE to act any differently as HSE had already surveyed the Contractor’s workers.

92. Finally, Ms A said HSE did not take sufficient action regarding what the Council told its tenants. She said she was not told about asbestos in her home when she moved in. She was given a decoration allowance despite this. She said she could easily have inadvertently disturbed the asbestos.

93. During its inspection, HSE found the Council was not giving tenants any information about the asbestos in their properties, other than a general statement that tenants should not undertake repairs or alterations. The inspectors dealing with Ms A’s case sought policy advice, because there is no specific part of the legislation that says what tenants should be told.

94. The policy advice was a combination of the Control of Asbestos Regulations (sections 11, 15, 16 in particular), the Health and Safety at Work Act section 3, and the Construction (Design and Management) Regulations, section 4. Collectively, these would imply a duty on social landlords to provide tenants with sufficient information proportionate to the risk profile of ACMs in the tenants’ property, and the foreseeable actions the tenant might take. It explained that no policy line had been developed within HSE regarding what constituted a material breach of the legislation. It said enforcement action should take the form of advice and guidance. As such, HSE wrote a letter of advice to the Council.

95. HSE explained to Ms A that it was unable to take any further enforcement action given the lack of policy within HSE. During our investigation, HSE explained a policy was being developed for the provision of information to social housing tenants. It explained without a policy that set out what a material breach of the legislation might be, enforcement action in this one case would set a precedent for all other cases. HSE explained this was not helpful because this is a complex area. Different social housing providers faced different and unique challenges in respect of protecting tenants. Any policy had to recognise this. HSE further explained that in its role of regulator, it had a number of other ways by which to bring organisations into compliance, including providing advice and publishing information on its website.

96. HSE’s explanations for why it offered advice to the Council in this instance takes relevant considerations into account. These include its own lack of policy, its role in bringing organisations into compliance, and the requirement in the Regulator’s Code, section 1, to act proportionately. This decision meets with the Ombudsman’s Principles.

Complaint 2b) HSE did not carry out its role in accordance with its own policy and guidance, it failed to provide reasons for its decisions with reference to the appropriate policy and legislation, and its responses to have been contradictory.

97. Paragraphs 69 to 96 explain how HSE carried out its role in accordance with its own policy and guidance. They explain how HSE gave reasons for its decisions with reference to its own policies and the legislation. We have explained in paragraphs 80 to 88 why those explanations are in accordance with the Ombudsman’s Principles. We have seen no evidence those explanations were contradictory.

Complaint 2 c) HSE failed to provide Ms A with information she asked for about its investigation

98. Ms A told us HSE had not given her information about the survey it conducted with the Contractor. We have seen HSE gave Ms A the information (in paragraph 70) in its complaint responses to her. During our investigation, we asked HSE if it had any further records about the survey. In response to our provisional view, HSE provided us with a copy of the record one of its inspectors made on 10 July 2019. That record details more information about the survey than that given to Ms A.

99. Specifically, it says that HSE’s records say that it was given a list of 38 employees, from which 8 were selected at random. The employees were interviewed and the slides of the training they should have had were reviewed. The record lists the aspects of the training that the employees could recall, including:

· the properties and health effects of asbestos,

· the types and uses of asbestos

· identifying asbestos and the likely places to find it and ACMs in buildings

· procedures to be followed in event of an emergency

· avoidance of disturbing ACM where possible

· presuming that material is an ACM where there is any doubt

· non licensed and licensed work

· safe work procedures

· personal protective equipment and respiratory protective equipment and other protective measures

· waste handling and disposal

· law and guidance about how to do specific tasks

· equipment and how to use it

· forms/paperwork

100. The Ombudsman’s Principles say organisations should be open and accountable, which includes keeping proper and appropriate records and being accountable for decisions. HSE did have an appropriate record of the survey, in line with our Principles. It told Ms A it had conducted a survey, what that involved, and what the outcome of it was. However, it clearly did not include the detail Ms A was seeking. In accordance with the Principle of being accountable for decisions, HSE could have provided Ms A with more detail about why it had reached the conclusion that the Contractor’s employees were properly trained. HSE failed to act fully in accordance with the Principles by not giving Ms A more information about the survey, particularly when she asked for it. However, this single failing is not so serious as to amount to maladministration.

Conclusion

101. Ms A raised justifiable concerns about the failings of the Contractor and the Council when asbestos was removed from her property. She has understandably been caused a significant amount of distress and worry by the events described in this report, particularly because her son has a lung condition.

102. We can understand Ms A continues to be concerned that neither the Environment Agency nor HSE are able to provide her with the reassurance she seeks, that the work on her home was done properly. Both organisations acknowledge they are unable to provide Ms A with the reassurance she wants in respect of her home.

103. Nevertheless, both organisations acted in accordance with the relevant guidance and legislation to ensure the Contractor and the Council came into compliance with the law. We recognise this means Ms A still does not have the reassurance she seeks about her home. We recognise this report is unlikely to give Ms A any greater faith in the systems in place regarding non-licensed asbestos work. We hope that we have nevertheless clearly explained the reasons for our decision.

1. Ms A complained about the enforcement action taken by the Environment Agency and the Health and Safety Executive (HSE), after she complained about works to remove asbestos in her home. It would have been extremely worrying for Ms A to find evidence of errors and omissions by contractors, who undertook asbestos work in her home. This is particularly because she has a young son with a rare lung disease.

2. We have not found failings by the Environment Agency or HSE regarding the enforcement action they took after Ms A’s complaints to them. Both organisations took relevant considerations into account, in accordance with their legislation and guidance when deciding how to act on Ms A’s concerns. This was also in line with the Ombudsman’s Principles. We found one shortcoming by HSE in the information it provided to Ms A. However, this was not serious enough to amount to maladministration.

3. We therefore do not to uphold Ms A’s complaints about the Environment Agency or HSE. We recognise this will be a disappointing decision for Ms A who is understandably concerned about how asbestos was, and continues to be, removed from her home.