London & Quadrant Housing Trust (202001700)

REPORT

COMPLAINT 202001700

London & Quadrant H T

15 February 2021

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 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:
1. The accuracy of the fire safety assessment completed by the landlord in relation to the building which the resident owns a property in.
2. The landlord’s response to Government guidance on fire safety and cladding in relation to the building which the resident owns a property in.

Background and summary of events

Background

The resident is the shared owner of the property (the property) which the complaint concerns. The landlord is the freeholder.
The property is a flat situated in a purpose-built block (the building).
Advice Note 14 will be referred to throughout the assessment. This advice note was issued by the Government in December 2018 as part of its Building Safety Programme. In summary the advice was for owners of high-rise leaseholder buildings where the external wall system of the building did not incorporate Aluminium Composite Material (ACM). The advice set out checks which owners could carry out to satisfy themselves, and their leaseholders, that their building was safe.
In June 2019 the Government issued an advice note on risks arising from balconies on residential buildings, regardless of height. The guidance set out that where a building has balconies which are constructed of combustible materials and thereby pose a risk of external fire spread then building owners should take appropriate action to manage that risk.
The Government’s guidance was consolidated in ‘Building Safety Advice for Building Owners’, issued in January 2020. Paragraph 1.4 of this guidance states “for the avoidance of doubt, building owners should follow the steps in this advice as soon as possible to ensure the safety of residents and not await further advice or information to act”. Paragraph 1.5 of the guidance notes that “the need to assess and manage the risk of external fire spread applies to buildings of any height”.
In response to the guidance some lenders took the view that, if certification could not be provided to demonstrate compliance with the Government’s guidance on fire safety, they would be unwilling to offer a mortgage on properties within these buildings as they would have a value of £0.
In January 2020 The Royal Institution of Chartered Surveyors (RICS), The Building Societies Association (BSA), and UK Finance agreed a new industry-wide valuation process to help people buy and sell homes and re-mortgage in buildings above 18 meters (six storeys). Form EWS1 was introduced to prove to lenders that external cladding had been assessed by an expert.

Summary of events

On 20 February 2020 the resident wrote to the landlord regarding the sale of the property and fire safety. In summary the resident said:
1. She was “appalled” to learn following a visit from a surveyor, as part of the sales process, that it may be difficult to sell the property due to the construction of the balcony which included timber.
2. Prior to commencing the sales process, she had spoken with the landlord’s re-sales team who informed her that the building was “not on [its] spreadsheet of [blocks] at risk, and therefore there [was] no issue” in relation to fire safety.
3. She required answers to the following questions:
  1. Why a fire risk assessment had not been completed for the building when each property had balconies constructed of timber?
  2. Why was she told that the building was safe when this was not the case?
  3. When would certification confirming compliance with Advice Note 14 be issued?
  4. Details of the material used on the balconies and how flammable it was.
  5. What remedial work was required to address the balconies and who would cover the cost of the work?
The resident concluded by confirming that she required urgent answers to her questions as she needed to sell the property to care for her mother.
On the same day the resident also wrote to the landlord to make enquiries regarding sub-letting the property if selling was not an option.
On 25 February 2020 the landlord responded to the resident’s enquiry regarding the sale of the property and fire safety. In summary the landlord said:
1. It was “sorry” that it could not provide the information which was required by mortgage lenders in order to allow the sale of the property to proceed. The landlord said it understood that this would be “very frustrating”.
2. In recent months lenders had been making extra requirements on people who apply for mortgage on properties in purpose-built blocks. The landlord explained that lenders required independent certification that the property met the requirements of Advice Note 14. The landlord said in the short term “at least” it was unable to provide this.
3. To obtain certification building owners must employ a specialist fire engineer to carry out intrusive tests of the building’s structure. The landlord confirmed that “if this process [could] be completed conclusively the results then needed to be analysed and any resulting work planned and carried out before the correct evidence [could be provided]”. The landlord said that this was “a complex and lengthy process”.
4. Buildings must be prioritised based “on risk” and it expected its programme to “take several years to deliver”.
5. While it could not provide certification to demonstrate compliance with Advice Note 14 it did not mean that the building was unsafe. The landlord confirmed the following in relation to the building:
  1. It had received building control sign-off when it was built
  2. It had received approval from a licensed warranty provider after it was built
  3. It had an up-to-date fire risk assessment – the landlord confirmed that any recommendations were dealt with immediately or put into a programme of work to be completed as soon as possible.
6. It was not a requirement for a building to meet the conditions of Advice Note 14, however some lenders had taken the view that if independent certification could not be provided they would not offer a mortgage. The landlord noted that lenders’ stance was “beyond [its] control”.
7. The problem was impacting leaseholders nationwide and it was working with other housing associations to call on the Government to “step in”.
On 27 February 2020 the resident wrote to her MP regarding the sale of the property and fire safety. Within her correspondence the resident reiterated her concerns that the building was not safe due to the balcony and was concerned that the landlord was not taking steps to address the issue. The resident also noted that the building was next to a high-rise block (the block) and she was concerned that a fire from the block may spread to the building easily. The resident said that the landlord had failed to confirm if it had tested the block for cladding.
On the same day the resident also:
1. Informed the landlord that despite it granting her permission to sublet the property she did not wish to pursue that option at that time.
2. Returned the valuation survey to the landlord as part of the sales process.
On 5 March 2020 the resident wrote to the landlord requesting further information on its compliance with Advice Note 14 in respect of the building. In summary the resident said:
1. If form EWS1 was not available for the building, when would the building be inspected so the form may be produced? The resident said it was not possible to obtain a mortgage on the property without form EWS1 and therefore it would affect the sale of the property.
2. Prior to instructing a valuation survey she had made enquiries with the landlord’s pre-sales team regarding fire safety who had advised that there were no issues with the building. The resident said that this was misleading.
3. Since January 2020 buildings under 18 meters were subject to Advice Note 14. The resident confirmed that the building was subject to Advice Note 14 due to the timber on the balconies despite being below 18 meters tall.
4. Why had the landlord not undertaken a fire survey on the estate which the building was situated on, which took into account the presence of a high-rise building – the block?
5. The building should be urgently tested considering the recent fire at a residential building in Barking due to “wood balconies”.
6. Was the landlord financing the remedial works required to remedy the balconies on the building?
7. If the property was valued at £0 she should not have to pay ground rent or rent.
8. She needed to sell the property to look after her mother.
The resident concluded by confirming that she did not expect a “generic reply from the landlord” and needed specific answers to her questions.
On the same day the landlord responded. In summary the landlord said:
1. It was sorry but it was currently unable to provide the resident with a list of materials used in the construction of the building. The landlord explained that locating an accurate list of materials would require a significant amount of time to search various historic files with no guarantee that the information would be found. The landlord confirmed that, even if the information was located, a professional fire safety expert would still need to physically inspect the materials used on the externals walls to “check what [was] in [its] files [was] exactly what [had] been installed”.
2. Given the extent of the Government’s guidance it was “highly likely” that the fire expert would recommend that remedial works were required to the building. The landlord said that because it owned many buildings it would take several years to deliver the programme of works and it must take a risk based approach.
3. It had included a copy of the fire risk assessment for the building.
4. It was sorry that it was not able to provide “more positive news” for the “uncertain position” the resident found herself in. The landlord noted that this was however “beyond [its] control”.
5. Up-to-date information on its approach to Advice Note 14 was published on its website.
On 10 March 2020 the resident’s MP wrote to the landlord to reiterate her concerns regarding the sale of the property and fire safety.
On 11 March 2020 the resident responded to the landlord’s correspondence dated 5 March 2020 and to comment on the fire risk assessment. In summary the landlord said:
1. The fire risk assessment did not mention “external balconies with wood decking” which was unacceptable.
2. The fire risk assessment was medium which was “not acceptable”. The resident noted that the risk was likely to be higher if the balconies were taken into account.
3. The landlord’s response that the situation was beyond its control was unacceptable.
4. When would the landlord assess the urgent fire risk posed by the wood balconies on the building?
5. The landlord had not confirmed if the block had been assessed in line with Advice Note 14.
On the same day the resident also registered a complaint with the landlord regarding the sale of the property and fire safety. In summary the resident said:
1. The landlord had provided an “inaccurate fire assessment for [the building]” and had therefore failed to “respond to an obvious fire risk”. The resident explained that the inaccurate information was in respect of the balconies, specifically that it did not take into account that the balconies contained flammable materials.
2. The building should have been flagged up as needing urgent inspection. The resident said “by pretending” that there was no timber on the balconies the landlord had prevented this from happening.
3. It was unacceptable that the landlord was “unwilling” to provide details of the composition and flammability of the material used on the balconies.
4. The timber on the property’s balcony was “in poor shape”.
5. It was “incomprehensible” that the landlord was unwilling to take action to remove the timber on the balconies as it was “a simple action”.
6. It was unacceptable that the landlord had failed to provide information in relation to fire safety in respect of the block.
7. It was unacceptable that the landlord failed to provide a timetable for the inspection or work to address the balconies.
On 12 March 2020 the landlord acknowledged the complaint. The landlord confirmed that it would be responding to the complaint at stage two of its complaint procedure and the response would be provided within 10 working days.
On 26 March 2020 the landlord wrote to the MP setting out that it was responding to the resident’s concerns regarding the sale of the property and cladding under its complaint procedure.
On 2 April 2020 the landlord wrote to the resident setting out that its complaint response would be delayed. The landlord explained that it was taking longer to obtain the information it required in order to provide a comprehensive response. The landlord confirmed that its response would be provided by no later than 23 April 2020.
On 8 April 2020 the landlord provided its formal complaint response. In summary the landlord said:
1. In response to the resident’s concerns that the fire risk assessment inaccurately stated that the balconies were metal:
  1. There was some metal used in the balconies, “so this [was] correct”. The landlord said that it agreed that the report omitted the fact that the balconies also comprised timber. The landlord confirmed that this was “a failing”.
  2. It had amended the fire risk assessment accordingly which it had enclosed with its response. The landlord confirmed that it had also amended its training for its fire risk assessors to ensure all external items are adequately defined.
2. In response to the resident’s concerns that the timber should have been flagged up as needing urgent inspection and removal:
  1. The latest Government guidance released in January 2020 stated that balconies including combustible materials, such as timber, may not meet appropriate standards of safety. The landlord confirmed that it also stated that removal and replacement of any combustible material used in a balcony construction was the clearest way to prevent fire spread.
  2. It had consulted with an internal senior fire officer regarding the timber on the balconies. The landlord confirmed that they advised “in my opinion there is a low risk of a fire starting and spreading up the building for a few reasons – each balcony is separated, there were no ignition sources, and the cladding material is brick. The material on the deck is combustible like a front door and would not easily ignite”.
  3. It did plan to remove and replace the decking on the balconies in order to improve the safe of the building as part of its long-term programmed works. The landlord confirmed that it was however “unable to provide a timescale for this work at present”. The landlord explained that this was because it owned so many buildings affected by the guidance and it was not able to inspect, test and carry out works on them all at once. The landlord confirmed that it was therefore prioritising buildings on risk taking into account height, occupancy and building materials. The landlord said that it would issue its prioritisation policy in Spring 2020.
1. In response to the resident’s concerns that it was unwilling and had failed to provide information about the flammability of the material used on the balconies as well as the cladding on the building:
  1. Initially there was “a misunderstanding” about what information the resident was requesting. The landlord said due to a lack of staff resource at that time it was unable to provide a list of materials. The landlord said that this was “a failing”.
  2. It had since increased the resources available to provide information on cladding.
  3. The external structure of the building used brick as its main cladding system. The landlord said that behind the brick it knew there was a non-combustible fire-rated insulation made in Kingspan which was called “K15”.
  4. It did not know the exact brand of timber used on the balconies however it was aware that it was not ThermoWood.
  5. In relation to the block it was unable to supply any information regarding the materials used at this time because it was located on a “physical CD” in its offices which it was unable to access due to Covid-19.
2. In response to the resident’s concerns that the decking on the property’s balcony was in poor shape as it was rotting:
  1. It had raised a work order to inspect the balcony. The landlord said that the timescale for completion may be affected by Covid-19.

The landlord concluded by confirming:
1. It had found failings in its communication with the resident. The landlord apologised for this.
2. It had not found significant failings in regard to its building safety responsibilities. The landlord said its omission in not recording timber on the balconies did not “have a material effect on [the resident’s] or the building’s safety”.
3. It was satisfied that the building had the correct fire strategy in place and it had met its responsibilities as landlord and building owner.
4. If the resident was not happy with its response she may refer the matter to this Service for adjudication.
On the same day the resident responded. In summary the resident said:
1. She was happy that the landlord now accepted that there was timber on the balconies. The resident was however concerned that the landlord suggested that the building remained low risk as it was “in clear contradiction with the Government guidance which stated that timber on balconies required urgent remedial work”.
2. It was unsatisfactory that the landlord did not know the exact specification of the timber used on the balconies.
3. She had consulted with the local fire brigade who said, following an inspection, that the balconies had been poorly build and that fire could easily spread from balcony to balcony.
4. It was unsatisfactory that the landlord had no easy access to information regarding the block, especially as it looked like it had cladding.
5. The landlord must provide a clear date when it would be conducting remedial work on the balconies as per the Government guidance.
6. The landlord had not set out when form EWS1 would be available for the building.
7. She would be referring her complaint to the Ombudsman.
On 10 April 2020 the resident wrote to the landlord again in relation to its complaint response. In summary the resident said:
1. The landlord had written to all residents in the building reminding them that barbecues on balconies was prohibited. The resident said that this was concerning, in addition to cigarettes being dropped, as these were ignition sources.
2. Kingspan K15 was one of the products that was found in the Grenfell Tower and could be combustible. The resident asked the landlord to confirm that it was safe.
On 15 April 2020 the landlord responded to the resident. In summary the resident said:
1. It had written to all residents in light of the good weather and bank holiday weekend. The landlord said that there was no “specific risk” to the building.
2. It was satisfied that the insulation used on the building was non-combustible as it was A2 fire rated and was also situated behind brick. The landlord said that a senior fire engineer had visited and was happy that the building had adequate safety measures in place.
On the same day the resident thanked the landlord for the additional information. The resident noted that the following points were outstanding from her complaint, namely:
1. When would the timber be removed from the balconies?
2. When would form EWS1 be provided?
3. When would information regarding the block be available?
Within her correspondence the resident disagreed that the building was low risk, including as the fire risk assessment had classified the building as medium risk.
The landlord responded later that day setting out that it had answered the resident’s questions. The landlord reiterated that it was unable to provide a timescale for removal of the timber from the building due to the number of buildings it owned. The landlord explained that form EWS1 could only be provided following the remediation work. The landlord added that due to Covid-19 it could not access information in relation to the block.
In response the resident set out that the landlord’s position was not acceptable. The resident added that the landlord’s stance was preventing residents from staircasing or selling their properties. The resident confirmed that she would be taking her complaint to the Ombudsman.
On 21 May 2020 the resident wrote to the landlord regarding her complaint. In summary the resident said:
1. She was still waiting confirmation regarding the fire safety status of the block.
2. She had still not received a clear timetable when the timber would be removed from the balconies and replaced by a non-flammable material.
3. She had not heard from the landlord regarding form EWS1 in relation to the building.
4. The landlord had not responded to her concern that it was “interrupting the staircasing process or the sale/ process by not providing the right certificates required by lenders”.
On 9 June 2020 the landlord responded to the resident. The landlord confirmed that its response was given under its complaints procedure. In summary the resident said:
1. The block was “a reinforced concrete framed building” which had unitized cladding. The landlord explained that unitized cladding was a wall structure constructed in the factory consisting of insulated glass panels sandwiched between the curtain wall frame. The landlord confirmed that it was “a totally different form of construction to that of Grenfell with no ACM visible”. The landlord said that the block was considered low risk as there were no high risk combustible materials in the fabric of the building.
2. The primary construction of the building consisted of a reinforced concrete frame with a brick façade skin, cavity and SFS (Metsec) insulated drylined inner walls. The landlord confirmed that the wall/ cavity build-up was filled with mineral wool insulation and thus contained no ACM. The landlord said that the building’s drawing detailed that the correct fire stopping was in place between floors.
3. It had not been able to inspect the property’s balcony in relation to maintenance due to Covid-19.
4. It had consulted with its senior fire officer who confirmed that there was a low risk of fire starting or spreading due to timber on the balconies.
5. It planned to remove and replace the timber of the balconies in order to improve the safety of the building as part of its long-term programme of works. The landlord advised that it was however unable to provide a timescale for the work at present. The landlord reiterated that this was due to the number of buildings it owned and the need to prioritise work based on risk. The landlord confirmed that it would be issuing a copy of its prioritisation policy in “spring/ early summer 2020 to help residents understand the timescale”.
6. It was unable to confirm a timescale for form EWS1. The landlord explained that it was unable to inspect, test and then carry out works on all its buildings at once. The landlord confirmed that its prioritisation policy, to be issued, would help the resident understand when form EWS1 would be available.
7. It had been able to support some residents that wished to sell as it had become apparent that, whilst it could not influence lending criterion by financial institutions, it has seen that lenders were not taking a consistent approach and some would lend on a building while others would not; some required an EWS1 and others did not.
8. It had amended its policy so that shared owners may sublet where they are not able to sell.
9. It was “very mindful that changes in lenders approach and updates to the guidance had placed residents in a difficult position, however [it] was fully invested in supporting all its residents”.
10. While it was unable to provide a timescale for removal of the timber on the balconies or form EWS1 it hoped that the resident was reassured that it was putting plans into action to resolve the situation.
The landlord concluded by confirming that the resident may approach the Ombudsman if she was not happy with its response.
On 7 June 2020 the resident referred her complaint to the Ombudsman as she was not happy with its response.
On 24 June 2020 the resident wrote to the landlord confirming that the property was on sale through its re-sale team. The resident said “should any sale collapse due to [the landlord’s] inability to produce [form EWS1] she [expected the landlord] to reimburse all expenses [she had incurred]”.

Assessment and findings

The Ombudsman’s internal guidance for caseworkers considering complaints about cladding [1] sets out that, as the Government’s expectations in relation to cladding and fire safety are only detailed in guidance, there is an element of discretion for a landlord as to how and when it chooses to comply with it.
The Ombudsman’s guidance further sets out that when investigating a complaint relating to the Government’s guidance on fire safety and cladding the Ombudsman will consider the following points:
1. What are the landlord’s long-term plans for compliance with the guidance and are these fair and reasonable?
1. How has it communicated with shared owners/leaseholders regarding the situation and was this communication appropriate?
2. How has it responded to the individual circumstances of the leaseholder?
These points will be considered when assessing whether the landlord’s actions and response to the complaint were fair in all the circumstances.

Scope of investigation

The resident’s concerns were registered as a complaint in March 2020, and the landlord issued its final response on 9 June 2020. This Service is aware that, following the landlord’s final response, the landlord and resident have continued to communicate on the substantive issues of the complaint. The focus of this investigation is the matters which resulted in the original complaint and the landlord’s response to this.

The accuracy of the fire safety assessment completed by the landlord in relation to the building which the resident owns a property in

The landlord has acknowledged that the fire risk assessment which it completed on 29 January 2020 in respect of the building did not record timber decking on the balconies.
Following the resident’s comments on 11 March 2020 highlighting the error the landlord reviewed the fire risk assessment on 27 March 2020. Following the review the assessment was amended to reflect that the properties had “private balconies, with metal frames and timber decking”. The assessment further set out that “tasks have been issued to meet the requirements of current guidance… Advice for building owners of multi-occupied residential buildings”.
An internal record by the reviewer, also dated 27 March 2020, noted:
1. The balconies “in front of the access doors have a soffit metal plate, so at the time of build they [it was] considered protecting the escape route”.
2. “In my opinion there is a low risk of a fire starting and spreading up the building for a few reasons; each balcony is separated, there were no ignition sources and the cladding material is brick unlike Barking. The material on the deck is combustible like a front door and would not easily ignite”.
3. A task had been raised to remove any flammable and combustible material from the balconies and to replace with a non-combustible material. The reviewer stated that the task would be put to the cladding team to prioritize for completion.
In the Ombudsman’s opinion it is unsatisfactory that the fire risk assessment failed to accurately capture that the balconies contained timber. This is because the purpose of a fire risk assessment is to identify the risk of hazards and determine what safety measures are needed to ensure the safety of everyone in a building. The landlord should have been able to rely on the accuracy of its fire risk assessment and the error within the report will understandably have caused concern and uncertainty to the resident.
While it was unsatisfactory that the fire risk assessment on 29 January 2020 omitted to identify timber on the balconies in the Ombudsman’s opinion it does not amount to a service failure. This is because the evidence shows that on notification of the error the landlord took immediate steps to put things right; by reviewing the assessment and raising a task to address the hazard by referring the matter to its cladding team.
The Ombudsman understands that the landlord’s late identification of timber on the balconies has not impacted on the building’s prioritisation for remedial works – which will be considered below.

The landlord’s response to Government guidance on fire safety and cladding in relation to the building which the resident owns a property in

As the Government’s expectations in relation to cladding and fire safety are only detailed in guidance there is an element of discretion for a landlord as to how and when it chooses to comply with it.
It is clear from the landlord’s correspondence with the resident that the landlord intends to comply with the Government’s guidance in respect of the building and to obtain form EWS1. This is because the landlord has explained that it will be responding by completing remedial works to remove the timber on the balconies and to replace it with a non-combustible material. In the Ombudsman’s opinion this is appropriate as, while the guidance is not a legal requirement, it has been established as best practice in relation to building safety and form EWS1 is required by lenders.
Within its correspondence to the resident and on its website the landlord explained that it is taking a risk-based approach to prioritising its buildings for inspection and remediation considering height, occupancy and known building materials. In the Ombudsman’s opinion it is appropriate that the landlord has shared this information, to provide an outline of its approach and to demonstrate that its approach in prioritising the inspections and remediation is fair and rational. The landlord also explained that the inspection and remediation would take a significant amount of time to complete. In the Ombudsman’s opinion this was appropriate to manage the resident’s expectations.
The Ombudsman notes that on 7 January 2021 the landlord wrote to the resident to confirm that during the week commencing 11 January 2021 an external survey of the building was scheduled to be undertaken in line with Advice Note 14. The Ombudsman notes that prior to this update, and in September 2020, the landlord informed the resident that the timetable for inspecting low rise buildings would not be released until April 2021. In the Ombudsman’s opinion it is positive that the landlord has managed to schedule the inspection prior to April 2021.
The fire risk assessment dated 29 January 2020, reviewed on 27 March 2020, concluded that the risk rating for the building was medium meaning “effort is required to reduce the risk to the lowest level possible and measure implemented within a defined timescale”. The assessment noted two high priority actions, two medium priority actions and three low priority actions to be undertaken. The Ombudsman notes that one of the high priority actions was in relation to the balconies and the other was in relation to an individual property and the smoke alarms within.
The landlord explained to the resident why the building was not considered high risk and would therefore not be expedited for inspection and remediation. The landlord said that this was due to the conclusion of its senior fire officer who had reviewed the fire risk assessment. In the Ombudsman’s opinion it was reasonable for a landlord to rely on the professional opinion of its operatives and the review of fire risk assessment as they are employed by it for their expertise and knowledge.
As part of her complaint the resident said that the landlord informed her that there were no fire concerns in relation to the building on making enquiries regarding the sales process. The Ombudsman can see that on 18 September 2019 the landlord wrote to the resident setting out: “with regard to cladding [it had] carried out an inspection of all [its] blocks and if [hers was] affected then [she] would have received correspondence from [it] regarding the way forward and any interim measures put in place by [it]”. It is clear that in September 2019 the landlord provided the resident with inaccurate information as the building was subject to Government guidance in relation to fire safety. The Ombudsman believes that the landlord provided the inaccurate information as it had not identified at that time that the balconies contained timber.
In considering the complaint the Ombudsman cannot see that the landlord considered the resident’s concerns that it provided misinformation in response to her initial pre-sale enquiries. This is unsatisfactory. In the Ombudsman’s opinion the landlord should have acknowledged that its email dated 18 September 2019 contained inaccurate information and would have informed the resident’s decision to go ahead and instruct a valuation of the property in early 2020. The Ombudsman notes that the landlord has confirmed that it has since refunded the resident the valuation costs that she incurred. While it is appropriate that the landlord has refunded the valuation fee in the Ombudsman’s opinion the refund alone does not amount to reasonable redress as it does not take into account the inconvenience and distress the resident would have experienced as a result of the misinformation.
The Ombudsman can see that, despite the landlord informing the resident that the timber would not be removed from the balconies and form EWS1 would not be available in the immediate future, the resident put the property on the market for sale in June 2020. As the landlord had informed the resident prior to June 2020 that the sale of the property may not proceed due to the absence of form EWS1, in the Ombudsman’s opinion the landlord would not be liable for any costs she incurred should a sale collapse as she was able to make an informed decision to put the property on the market or not.
As part of her complaint the resident requested information regarding the construction of the block. The Ombudsman can see that the landlord provided this information within its complaint response dated 9 June 2020. While the time taken to provide the information was protracted, the landlord did explain why the information would take time to produce, as set out in paragraphs 22 and 29.
The Ombudsman can see that during the period under investigation the landlord granted the resident permission to sublet the property, as set out in paragraph 14 above. In the Ombudsman’s opinion this was reasonable as the resident was unable to sell the property through no fault of her own and to somewhat mitigate the impact of the situation on her. It was also reasonable as it demonstrated that the landlord was taking the resident’s individual circumstances into account when responding to her concerns, specifically that she said that she needed to sell to care for her mother. The Ombudsman notes that the resident did not pursue this option.

Determination (decision)

In accordance with paragraph 55b of the Housing Ombudsman Scheme, in the Ombudsman’s opinion, the landlord has offered reasonable redress to the resident in respect of the accuracy of the fire safety assessment it completed in relation to the building which the resident owns a property in.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in relation to its response to Government guidance on fire safety and cladding in relation to the building which the resident owns a property in.

Reasons

While it was unsatisfactory that the fire risk assessment on 29 January 2020 omitted to identify timber on the balconies and would have been concerning to the resident, as a landlord should be able to rely on its fire risk assessments, in the Ombudsman’s opinion it does not amount to a service failure. This is because the evidence shows that on notification of the error the landlord took immediate steps to put things right; by reviewing the assessment and raising a task to address the hazard. The Ombudsman will not make a finding of maladministration where a landlord has offered suitable redress to resolve a complaint.
While the landlord has confirmed that it intends to comply with the Government’s guidance in respect of the building and to obtain form EWS1, which is appropriate, the Ombudsman is dissatisfied that the landlord failed to identify during the complaints procedure that it provided inaccurate information to the resident in its email dated 18 September 2019 and therefore adequately took into account the impact on the resident. Although the landlord has refunded the resident the valuation fee she paid, the Ombudsman considers that a sum of compensation is due to recognise that the information would have informed the resident’s decision to go ahead and instruct a valuation of the property in early 2020 and therefore for the inconvenience she would have experienced.

Orders and recommendations

Orders

The landlord should pay the resident £150 compensation, within four weeks of the date of this determination, for providing misinformation within its email dated 18 September 2019.

Recommendations

The landlord should write to the resident (and other leaseholders) within four weeks of the date of this determination to provide an update following the external survey undertaken in January 2021 and next steps.
The landlord should contact the resident to explore whether there are any other actions it can take that may assist her whilst she waits to be able to sell her home, taking into account her individual circumstances.

[1] https://www.housing-ombudsman.org.uk/about-us/corporate-information/policies/dispute-resolution/guidance-on-cladding/