Clarion Housing Association Limited (202102226)

REPORT

COMPLAINT 202102226

Clarion Housing Association Limited

15 February 2023

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about the landlord’s:
1. Response to the resident’s fire safety enquiries.
2. Complaints handling.

Background and summary of events

The resident is the shared owner of a flat on the first floor of a building of which the landlord is the freeholder. The landlord has no recorded vulnerabilities for the resident.
The building is within a development of five blocks of purpose-built flats, contained within two detached buildings. The property is situated within a block of nine storeys which is 15 metres tall.
The government issued ‘Advice Note 14” (the Advice Note”) 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 December 2019, 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 metres (six storeys). Form EWS1 was introduced to prove to lenders that external cladding had been assessed by an expert.
The government consolidated ‘Advice Note 14’ when it issued ‘Building Safety Advice for Building Owners’ (BSA) in January 2020. Paragraph 1.4 of this guidance stated that ‘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’ and paragraph 1.5 stated 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 zero valuation.
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 is required for buildings under 18 meters where specific concerns apply e.g., there are balconies which stack vertically above each other and either both the balustrades and decking are constructed with combustible materials (e.g., timber), or the decking is constructed with combustible materials and the balconies are directly linked by combustible materials.
The landlord has a two stage complaints procedure. Paragraph 5.1 of the Ombudsman’s Complaints Handling Code says that landlords must respond to complaints within 10 working days.
Paragraph 5.13 of the Complaints Handling Code says that landlords must respond at stage two within 20 working days. Exceptionally, landlords may provide an explanation to the resident containing a clear timeframe for when the response will be received. This should not exceed a further 10 days without good reason.
An EWS1 assessment for the building was completed on 12 November 2020 and due to the presence of combustible materials (high pressure laminate cladding and Celotex), the building was given a B2 categorisation as the adequate standard of safety had not been achieved.
On 18 March 2021 the resident’s local councillor (“the councillor”) sent an email to the landlord on her behalf explaining that the resident wanted to sell her property as her family had grown. However, the resident was aware that the building had been given a B2 categorisation and that work needed to take place on the building to make it safe for the resident to sell her property. The resident wanted the landlord to let her know:
1. When the required works would be completed.
2. Who was ultimately responsible for the works.
3. How much the works would cost.
The landlord acknowledged the councillor’s email on 20 March 2021. The councillor sent further emails to the landlord chasing it for a response on 6 April 2021 and 21 April 2021.
On 8 April 2021 the resident sent an email to the landlord making a formal complaint saying that:
1. She wanted to sell the property and had instructed a valuer, but had now been informed that all instructions to sell were ‘on hold’ due to the adequate standard of safety not being achieved in the building. She was therefore unable to sell the property.
2. The landlord had been aware of the building’s inadequate safety standards in 2020 and the works had still not been carried out.
3. She wanted to sell the property as she was unable to carry on living in it. She wanted the landlord to provide details of a solution.
On 26 April 2021 the landlord sent a stage one complaint response to the resident, sending a copy to her councillor. In its complaint response the landlord said that:
1. The EWS1 assessment in November 2020 had confirmed that remedial works were required to the building to meet current fire safety standards.
2. Due to the amount of properties the landlord was responsible for, it was required to prioritise remedial works to its higher risk buildings first. It therefore couldn’t provide a timescale as to when the remedial works would begin on the building.
3. Currently only buildings over 18m tall were eligible for the Government’s Building Safety Fund. The landlord was however committed to ensuring that any remedial works were delivered as soon as possible and that leaseholders’ contribution were kept to a minimum.
4. It apologised for the delay in responding to her complaint and offered her £25 compensation for the delay.
On 26 April 2021 the councillor responded that he was unhappy with the landlord’s stage one complaint response as it did not provide any details about the timetable for remediation works and the potential costs to the resident.
On 21 May 2021 the landlord wrote to the councillor saying that it was completing a national survey of its stock, which would be completed by the end of the year. Following this it would develop a programme of further investigation and remediation work, with the buildings posing the highest risk being prioritised. The landlord also said that it would explore all avenues available to minimise the level of any costs that may be recharged to leaseholders.
The councillor sent an email to the landlord on 21 May 2021 saying:
1. It was not acceptable that the resident would have to wait until December 2021, at the earliest, to receive answers concerning remediation works.
2. It was not clear how long after the completion of the stock survey the landlord would be able to formulate the programme of works.
3. He was acting on behalf of the resident and asked to escalate the complaint to stage two of the landlord’s internal complaints procedure.
On 24 June 2021 the landlord sent the resident an email saying that it had received an email on her behalf from the councillor on 22 May 2021 and had escalated her complaint to stage two of its complaints process. It apologised for the delay in responding, which was due to higher than usual numbers . It said that it would provide her with its stage two response within 20 working days.
On 26 July 2021 the landlord sent the resident its stage two complaint response. In its response the landlord:
1. Repeated its comments about remedial works and the EWS1 form from its stage one response.
2. Said that its consultant had undertaken the initial assessment of the resident’s development which was being used to form the priority for future intrusive inspections. The programme of initial assessments was expected to continue for another three to four months before all blocks had been reviewed. However, the landlord said that based on the feedback from the consultant, it was likely that the development would be classified as a higher priority for the pending intrusive inspections.
3. Said that it was unable to confirm when the intrusive survey would be undertaken, but it would update residents as soon as it was able to.
4. Explained that following the completion of the initial assessment and the intrusive survey, a programme for remediation works would be developed. It was unable to confirm at this stage the extent of any works or an exact date for when these would be completed.
5. Said that it remained committed to ensuring any remedial works or upgrades to meet current fire safety standards were delivered as soon as possible. It would continue to liaise with the residents of the development to update them on any progress when it was in a position to do so.
6. Offered the resident £25 compensation for the further delay in responding to the complaint.
The landlord’s stage two complaint response dated 26 July 2021 was its final response to the complaint, confirming that the complaint had exhausted its internal complaints procedure.
On 31 July 2021 the landlord posted information for leaseholders and shared owners on its website saying that, “As government guidance has changed over time, the EWS1 assessment process may recommend additional remedial work to more buildings. If further work is required, [the landlord] will complete this, prioritising our taller buildings in accordance with risk profile.”
On 11 October 2021 the resident sent an email to the landlord asking if it was now able to give her a date for when the intrusive survey would take place. The resident also wanted to know if the landlord would allow her to sublet the property as she was unable to sell it.
On 15 October 2021 the landlord sent an internal email asking for the resident to be sent a sublet application.
On 10 December 2021 the councillor asked the landlord to provide an update on the remedial works. The landlord responded to the councillor on 11 January 2022 saying that:
1. The preliminary visual inspection of the development had been completed and as a result it had been assigned as a high investigation priority. Although the block was below 18m and the majority of the external façade was comprised of brick, further intrusive investigations were required to ascertain the full wall make-up.
2. It was waiting for the new fire safety guidance (PAS9980) to be formerly signed off by the government as this might influence the work that may or may not be required. It therefore couldn’t provide a timescale for further investigations.
3. If the resident was struggling financially, or needed to move for work or space purposes she could apply to sublet the property.
In January 2022 PAS 998 replaced the Government’s Consolidated Advice Notice.
Following an intrusive survey carried out on 14 and 16 March 2022 an External Fire Wall Safety Assessment was sent to the landlord on 17 March 2022. The following works were identified as being required to reduce the level of fire risk to a tolerable level: The installation of cavity barriers in various cavities behind the walls of the development.
On 14 October 2022 the landlord wrote to residents in the building concerning the issues identified with the cavity barriers and said that the original builders were , committed to undertaking the remedial works that they were likely to commence the work in the summer of 2023.
On 19 December 2022 the landlord granted the resident permission to sublet the property.
On 8 February 2023 the landlord wrote to the residents in the building saying that the builders now expected to commence the works towards the end of 2023.

Assessment and findings

In reaching a decision about the resident’s complaint we consider whether the landlord has kept to the law, followed proper procedure and good practice, and acted in a reasonable way. Our duty is to determine complaints by reference to what is, in this Service’s opinion, fair in all the circumstances of the case.

The landlord’s response to the resident’s fire safety enquiries

The Ombudsman appreciates that the resident’s situation has been difficult and that she has been in this position through no fault of their own. This is because until the landlord was able to provide certification, in line with the Government’s guidance, the resident was effectively in limbo as she was unable to sell the property as lenders would not lend on it because of the potential fire safety issue.
The Ombudsman’s Spotlight Report on Dealing with Cladding Complaints published in May 2021 says:
1. It is clear most landlords are taking a risk-based approach to inspections and, whilst this is rational, these plans do not appear to adequately consider the broader implications for all residents, especially those living in buildings below 18 metres. It is essential for landlords to provide a clear road map, with timescales, to all residents.
2. Effective communication is vital, and landlords need to assure themselves that their strategy for this is robust, well-resourced and proactive.
3. Landlords should always address the individual circumstances presented in a complaint.
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 now inspected the building and has said that the original builder will be completing the remedial works identified in the inspection. 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 was taking a risk-based approach to prioritising its buildings for inspection and remediation considering height, occupancy and known building materials. 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.
While the Ombudsman accepts that a risk based approach is a reasonable method for prioritising buildings for inspection and remediation in relation to Advice Note 14, the landlord’s approach does not take into account that not all leaseholders are in the same situation or circumstances.
The Ombudsman’s Spotlight Report on Dealing with Cladding Complaints says that “Landlords must ensure that they are proactive in providing appropriate and timely updates on a regular basis, at least once every three months even where there is little or no change.”
The landlord’s communication concerning the resident’s fire safety enquires was unreasonable as:
1. Although the building had been given a B2 categorisation in November 2020 the resident had to chase the landlord for information about the timing of the remedial works via her local councillor who contacted the landlord for updates on 18 March 2021, 6 April 2021 and 21 April 2021.
2. The updates on the works provided by the landlord on 26 April 2021 and 26 July 2021 were only provided to the resident in response to her formal complaint.
3. Although the landlord provided a generic update on its website on 31 July 2021, there is no evidence that it communicated any further update to the resident, until it did so via the councillor on 11 January 2022. This was despite being asked for an update by the resident on 11 October 2021 and by the councillor on 12 December 2021.
4. There is no evidence that the landlord provided any updates to the resident about the works between 11 January 2022 (via the councillor) and 14 October 2022.
5. There is no evidence that the landlord provided any update to the resident between 14 October 2022 and 8 February 2023.
The Ombudsman accepts that the challenges for the landlord in assessing the fire safety of, and responding to concerns about, all the properties within its housing stock are significant. However, for the reasons set out above there was maladministration by the landlord in its response to the resident’s fire safety enquiries.
However, the landlord did act reasonably and addressed the resident’s individual circumstances in agreeing to allow the resident to sublet the property.

The landlord’s complaint handling

The landlord has acknowledged that there were failings in its complaints handling as it apologised for the delay in its response at each stage and offered the resident £25 compensation for each delay.
The landlord took 13 working days to respond at stage one, 3 working days outside the timescale set out in the Ombudsman’s Complaint Handling code. The sum of £25 compensation, together with the landlord’s apology for the delay, was proportionate to the distress and inconvenience experienced by the resident as a result of the delay in responding.
However, there was maladministration in the landlord’s response to the resident’s stage two complaint as:
1. The landlord’s took 47 working days to respond to the complaint at stage 2, 27 working days outside the 20 working day timescale set out in the Ombudsman’s Complaint Handling Code.
2. The landlord informed the resident 25 working days after the escalation to stage two that it’s response would be delayed because of higher than usual numbers and said that it would send its response It would provide her with its stage two response within 20 working days. This was in breach of the provisions of the Ombudsman’s complaints handling code that any delay should not exceed a further 10 working days without good reason.
3. Despite having told the resident on 24 June 2021 that it would provide its stage two response within 20 working days it did not do so until 26 July 2021, 23 working days later.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of the complaints about its:
1. Response to the resident’s fire safety enquiries.
2. Complaints handling.

Reasons

The landlord did not provide the resident with a clear road map, with timescales, for the fire safety works. The landlord did not provide the resident with regular appropriate and timely updates.
The landlord delayed in responding to the resident’s complaints.

Orders

The landlord is ordered within four weeks of the date of this report to pay the resident £450. This is comprised of:
1. £350 for the distress and inconvenience incurred by the resident as a result of the landlord’s handling of the fire safety works in relation to the resident’s property.
2. £100 for the time and trouble incurred by the resident as a result of the landlord’s complaint handling failures.
The landlord is ordered within four weeks of the date of this report to write to all the residents in the building:
1. Providing an update on the fire safety works being undertaken to remedy the deficiencies identified in the building.
2. Providing a timetable for when it expects the various remedial works to commence and be completed.
3. Setting out a clear timetable detailing how and when the landlord will communicate with residents going forward about the progress of the remedial works, with updates being provided at least every three months.