London & Quadrant Housing Trust (L&Q) (202127442)

REPORT

COMPLAINT 202127442

London & Quadrant Housing Trust

4 May 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 concerns about the materials to be used to carry out remedial works.
2. Response to the resident’s request that it buy back his 30% share in the property.

Background and summary of events

The resident is a shared ownership leaseholder of the property which is a two- bedroom ninth storey flat in a building of which the landlord is the freeholder. The landlord has no recorded vulnerabilities for the resident or his family. However, the landlord is aware that the resident’s wife and child have asthma.
The landlord’s voluntary buy back policy says that:
1. The landlord recognises that where buildings are found to need major remedial work that renders a property unmortgageable, it may be in best interests of both the resident and the landlord to agree to a voluntary buy back of the leaseholder’s home.
2. The landlord will judge every case on its individual circumstances and buying homes back will only be undertaken at its sole discretion and where no other reasonable recourse is available.
3. The landlord will consider making an offer of a voluntary buy back of a property in the following circumstances:
  1. It is aware that that the property is unmortgageable to potential 3rd party buyers; and
  2. Where the remedial works require more than 12 months to complete and cannot be reasonably undertaken whilst the property is occupied.
  3. The landlord will not offer to buy back the property for financial hardship reasons alone.
4. The authority to approve any buy back lies with its investment and property group (IPG) and is at their absolute and sole discretion.
5. IPG will consider each request on the basis of the criteria set out in the policy, the landlord’s financial capacity at the time of the request, and in consideration of any exceptional factors (as set out in the buy back procedure).
6. IPG will also consider cases which do not meet the policy criteria but where there are considered to be exceptional circumstances.
Advice Note 14 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 late 2018 the resident contacted the landlord as he wished to buy an additional share in the property, “to staircase”. In June and July 2019 the resident chased the landlord to provide a copy of the fire risk assessment for the building which he required for staircasing.
The resident was unable to complete the staircasing, due to lack of any fire risk assessment and certification demonstrating compliance with the Government’s guidance on fire safety. The landlord subsequently gave the resident permission to sublet the property.
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.
On 12 October 2021 the landlord held a meeting for residents in the building. At the meeting the landlord set out details of the fire safety remedial works that it would be carrying out. The landlord anticipated the works lasting for 72 weeks and provided details of the scaffolding that would be erected on the building.
On 19 October 2021 the resident wrote to the landlord saying that:
1. Since 2018, his family’s life had been turned upside down by the fire safety issues at the building, which had caused them constant stress.
2. He was concerned about the extent of the proposed scaffolding and the lack of light and fresh air whilst the remedial works were carried out. He had assumed that the scaffolding would be open but he now understood that it would limit light and ventilation coming into the property. This would impact his family’s health, his wife used a steroid inhaler for asthma and his three year old son also had asthmatic symptoms. His wife had also had a separate inhaler for more severe attacks, which had been more frequent since 2018, and she had had to receive extra oxygen in hospital on two separate occasions.
3. He had the opportunity to move abroad for work and although the landlord had given him permission to sublet the property, the scaffolding and the ongoing works would make it difficult to rent out the property.
4. The impact on both the family’s physical and mental health meant that they needed to sell the property and move. Therefore he was requesting the landlord buy back his 30% share of the property.
On 20 October 2021 the landlord sent an email to the resident acknowledging his email dated 19 October 2021 as a formal complaint.
The landlord wrote to the resident on 22 October 2021 and said that:
1. The resident did not meet the two criteria set out in its voluntary buy back policy for when the landlord would buy back a resident’s share of a property and therefore it would not be in a position to accommodate the request to buy back the property. The criteria were that the landlord was aware that the property was unmortgageble to potential third party buyers and, the remedial works required more than 12 months to complete and could not be reasonably undertaken whilst the property is occupied.
2. The landlord would not offer to buy back a property for financial hardship reasons alone.
3. It repeated its offer to let him sublet the property.
The landlord’s records indicate that the resident emailed the landlord asking if its email dated 22 October 2021 was its final position concerning its request to buy back the property. The landlord replied to the resident on 26 October 2021 apologising for any misunderstanding and saying that its previous email was an outline of its policies and not its final decision on his buy back request. It would be holding meetings about the issue and would send him a full response by 5 November 2021.
The landlord’s records indicate that a buy back meeting took place on 26 October 2021 to discuss the resident’s request.
On 4 November 2021 the landlord sent the resident its stage one complaint response. In its response the landlord said that:
1. The resident’s case had been discussed at a meeting held earlier that week of the landlord’s voluntary buy back panel and its major works team programme manager.
2. The landlord would be holding a meeting on 9 November 2021 for residents in the building when a further set of frequently asked questions would be made available concerning the programme of building works.
3. It detailed more information about the wrap that would be used on the scaffolding. Instead of using plastic-wrap it would be using a white flame retardant debris netting. This product would allow more light and ventilation to pass through to the property. The landlord said that it had used it on another project recently and it had been well received by residents.
4. It was considering an option to only use the white debris netting in the immediate zones having the remedial works carried out, therefore still giving residents a view from their windows (albeit still with a scaffold) when works were not progressing in their zone of the building. It therefore anticipated a rolling programme of three to four floors having the white debris netting on them at a time.
5. There were no current plans to move any residents out whilst the works were taking place. The use of the white debris netting and the fact that only three to four floors would be worked on at any one time would reduce the overall impact to individual homes. The white debris netting would allow airflow and light to the property.
6. It would therefore not be in a position to progress his request to buy back the property as the request did not fall in line with its policy.
7. It understood the concerns that residents had and that the resident had a genuine worry about the lack of light and air, however it would do everything that it could to avoid as much disruption as possible, and it hoped that using the white debris netting would cause the least impact.
8. It confirmed that its buy back policy had been reviewed and updated in the past 12 months, and therefore took into account the external environment and the impact of cladding and EWS1 certificates.
9. It had no legal requirement to buy back individual properties.
On 8 November 2021 the resident sent an email to the landlord titled “subletting” and said “We are still pursuing this option.”
On 12 November 2021 the resident emailed the landlord asking to escalate the complaint as:
1. He felt that the materials that the landlord was proposing to use to carry out the remedial works would not be a viable or liveable option for his family.
2. He wished to know whether the landlord had carried out studies on the impact on residents, specifically young children, while using the white debris netting and whether residents in that building had the same medical conditions as his family.
3. His family had specific concerns and health conditions that had been exasperated by the current living conditions and further disruptions would make these worse and the landlord hadn’t addressed this.
The landlord sent the resident its stage two complaint response on 3 December 2021. In its response the landlord said that:
1. Its buy back policy had been followed correctly.
2. Its buy back policy was clear that it would only consider a voluntary buyback where the remedial works require more than 12 months to complete and could not be reasonably undertaken whilst the property was occupied, and these criteria did not apply to the resident’s current circumstances.
3. It had not carried out any bespoke studies on the material to be used in carrying out the remedial works. However, as it had explained in its stage one response one of the benefits of the produce to be used on the scaffolding was that it would allow more light and ventilation to pass through the property.
4. It would only be using the product within the isolated locations required, ensuring that residents were only affected by the netting for a short period so as to minimise potential disruption as far as possible.
5. It understood his concerns but said that it had received “positive anecdotal feedback” from residents at a recent project where the material was used and the residents had advised that the product and method “caused less disruption to their day to day living.”
The landlord’s stage two complaint response dated 3 December 2021 was its final response to the complaint, confirming that the complaint had exhausted the landlord’s internal complaints procedure.
The remedial works at the building began in June 2022 and are due to be completed in December 2023. The landlord has informed this service that following completion of the works it anticipates that an EWS1 form will be issued for the building. The landlord has also informed this Service that fortnightly newsletters about the progress of the works have been provided to residents via its external resident liaison team.

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 concerns about the materials to be used to carry out remedial works

On 19 October 2021 the resident raised the following concerns with the landlord about the impact that the scaffolding would have on his family, specifically:
1. The extent of the proposed scaffolding, and
2. That the scaffolding would limit the light and ventilation coming into the property.
It is evident that this situation has been distressing for the resident. However, it is beyond the expertise of this Service to determine if any ill health suffered by the resident or his family directly resulted from the landlord’s actions or lack of actions. Ultimately this would be a matter for the courts.
It is also not for this Service to comment on the suitability or otherwise of the materials the landlord decided to use on the scaffolding to carry out the remedial works, nor is this Service qualified to do so.
However, the landlord’s response to the resident’s concerns was reasonable as:
1. It addressed the resident’s concerns about lack of light and ventilation from the scaffolding by proposing to use a product to wrap the scaffolding that would allow more light and ventilation to pass through to the property than plastic wrap would..
2. It explained that it understood the resident’s concerns but that feedback from residents where it had used the product had been positive and residents had advised that it “caused less disruption to their day to day living.”
3. It addressed the resident’s concerns about the extent of the proposed scaffolding by explaining that it would use the wrap within the isolated locations required, ensuring that residents were only affected by the netting for a short period so as to minimise potential disruption as far as possible.
There was therefore no maladministration by the landlord in respect of this aspect of the resident’s complaint.

The landlord’s response to the resident’s request that it buy back his 30% share in the property.

The Ombudsman appreciates that the resident’s current situation is difficult and that he is in this position through no fault of his own. This is because until the landlord is able to provide certification, in line with the Government’s guidance, the resident is effectively in limbo as he is unable to staircase or sell the property as lenders will not lend on the building because of the potential fire safety issue.
The landlord’s decision not to buy back the resident’s property was appropriate as:

There was no legal obligation for the landlord to buy back the property.
The landlord’s buy back policy says that all offers to buy back are entirely at the landlord’s discretion.
The landlord’s buy back policy says that it will consider making an offer to buy back the property where the property is unmortgageable, the remedial works require more than 12 months to complete and cannot be reasonably undertaken whilst the property is occupied. Although the property was unmortgageable and required remedial works which would last more than 12 months this Service has not seen any evidence that the property could not be occupied whilst the works were undertaken.
Whilst the resident had concerns about living in the property whilst the remedial works were carried it is noted that the landlord had no plans to decant any of the residents as the works were to the exterior of the building and the fact that only three to four floors would be worked on at any one time would reduce the overall impact to individual homes.
The buy back policy says that the landlord will buy back a property where no other reasonable recourse is available. The landlord had offered to let the resident sublet the property as a solution to the resident’s issue. Although the resident had said in his complaint that he didn’t think he could sublet the property because of the remedial works, the resident then informed the landlord on 8 November 2021 that he was still pursuing the subletting option. It was therefore appropriate that the landlord considered that the subletting option was reasonable recourse that was available to the resident.
The landlord confirmed in its stage one complaint response that its buy back policy had been reviewed and updated in the past 12 months, to take into account the external environment and the impact of issues with cladding and the provision of EWS1 forms.
The Ombudsman’s Spotlight Report on dealing with Cladding Complaints says that whilst it is not the Ombudsman’s expectation that landlords automatically offer options to buy back properties “we do expect landlords to have considered whether this is an option they can accommodate in exceptional circumstances. Landlords should have considered what those exceptional circumstances may be, adopting a holistic and empathetic approach to the range of circumstances that may impact residents.” The landlord has demonstrated that it had considered the exceptional circumstances in which it will buy back properties, by setting this out in its buy back policy.

However, the landlord’s the landlord’s handling of the resident’s request that it buy back her property was unreasonable as:
1. The landlord informed the resident on 22 October 2021 that it would not be in a position to accommodate the request to buy back the property. This was before the resident’s request had been considered by the buy back panel. Whilst the landlord apologised to the resident for the confusion caused and said that the email was an outline of its policies and not its final decision on his buy back request, the resident could reasonably have concluded that the landlord had already made a decision about the buy back request before the matter had been considered by the buy back panel in accordance with the procedure set out in its buy back policy.
2. The documents provided by the landlord to this Service do not include any record of the buy back panel meeting held on 26 October 2021. Given that the resident’s buy back request was the subject of his formal complaint at that time, it would have demonstrated good practice by the landlord to keep records of the considerations of the panel.
For the reasons set out in the previous paragraph there was maladministration by the landlord in its response to the resident’s request that it buy back the property.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration by the landlord in its response to the resident’s concerns about the materials to be used to carry out remedial works.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in its response to the resident’s request that it buy back his 30% share in the property.

Reasons

The landlord acted reasonably in addressing the resident’s concerns about the materials to be used to carry out the remedial works.
The landlord informed the resident that it would not buy back his share of the property before it had appropriately considered the buy back request under the terms of its policy. The landlord did not keep records of the buy back panel meeting.

Orders and recommendations

The landlord is ordered within four weeks of the date of this report to pay the resident £400 for the distress and inconvenient incurred by the resident as a result of the landlord’s handling of his request to that it buy back the property.