Newlon Housing Trust (202107310)

REPORT

COMPLAINT 202107310

Newlon Housing Trust

28 April 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:
1. The landlord’s response to the resident’s request for an EWS1 form.
2. The landlord’s communication regarding the cladding.
3. The landlord’s complaints handling.

Background

The property is a two bedroom, second floor flat within a six storey building (referred to in this report as ‘the building’) and the landlord has confirmed that the building is 15.18m in height. The resident is a shared owner of the property with his partner and the lease began on 10 December 2010. For brevity, the resident and his partner are referred to in this report as ‘the resident’, even though some of the landlord’s contact was with both of them.
The lease agreement shows that the landlord is responsible for maintaining and repairing the structural parts and external walls of the block.
The government issued ‘Advice Note 14’ 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 (EWS) 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 Institute 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) or below 18 metres where there were concerns about the safety of cladding materials. 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.
On 8 March 2021, RICS issued new guidance (effective from 5 April 2021) in relation to the EWS1, which clarified the criteria for deciding whether an EWS1 was needed. In the case of buildings of five or six storeys, an EWS1 form should be required where:
1. There is a significant amount of cladding on the building (approximately one quarter of the whole elevation estimated from what is visible standing at ground level); or
2. There are Aluminium Composite Material (ACM), Metal Composite Material (MCM) or High Pressure Laminate (HPL) panels on the building; or
3. 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.

Summary of events

On 14 October 2020, the resident wrote to the landlord to ask for details about the height of the building and the building’s EWS1 status.
The landlord wrote to the resident on 14 and 16 October 2020 to provide information about staircasing, selling and the valuation process. The landlord stated that there were nationwide issues with fire safety and mortgage lenders, and stated that it could not control the mortgage market. The landlord included a link to further information about fire safety on its website and stated that it would check the position regarding the EWS1 status for the building.
On 2 November 2020, the landlord wrote to the resident and said that form EWS1 was designed for buildings over 18m in height or where there were concerns about the cladding used on lower rise blocks. Therefore, as the building in question was under 18m, the landlord would not be commissioning an EWS1 as there were no concerns with the building.
The resident emailed the landlord on the same day and stated that although the building was under 18m, “…for buyers and sellers the EWS1 is necessary to obtain a mortgage, as in the majority of cases lenders require an EWS1 form regardless of the of height of an intended purchase”. The resident therefore requested the landlord to commission an EWS1.
The landlord and resident exchanged further emails on 5 and 6 November 2020, in which the resident reiterated that lenders were requesting an EWS1 and the landlord repeated that as the building was under 18m and there were no concerns with it, the landlord would not be commissioning an EWS1. The landlord sent the resident a copy of the Fire Risk Assessment that had been carried out on the building in November 2019.
On 25 November 2020 and 24 December 2020, the landlord sent newsletters to all residents of the building. The first newsletter confirmed that it had commissioned fire engineers to investigate the cladding on all buildings over 18m and the second newsletter advised residents that although, the building was under 18m, it would carry out intrusive surveys of the building “as a matter of good practice”. The surveys were due to begin on 4 January 2021.
On 3 February 2021, the landlord sent a further newsletter to residents of the building to confirm that the surveys had taken place to investigate the external wall materials and underlying system to ensure they were fire compliant. The landlord stated that the fire engineers’ report was due by the end of February 2021, at which time the landlord would review the report.
During 15 and 18 February 2021, the landlord and the resident exchanged further emails, in which the resident asked when the report would be available and the landlord confirmed that the consultant’s report would not be back by 27 February 2021. However, it confirmed that the property valuation would be valid until 8 May 2021.
The resident wrote to the landlord on 22 February 2021 and queried why the landlord would need to wait for an EWS1 before marketing the property.
On 25 February 2021, the landlord wrote to the resident to say it was unable to advise whether a buyer was likely to succeed in obtaining a mortgage, as mortgage lenders had different approaches.
The landlord confirmed to the resident on 9 March 2021 that it had placed the property on the market for sale.
On 21 April 2021, the landlord wrote to the resident to advise that it could not contact a potential buyer’s financial adviser to discuss whether a lender would require an EWS1 as lenders’ criteria differed. The landlord reiterated that the EWS1 form was designed for buildings above 18m in height or lower-rise buildings with concerns where there were fire concerns.
On 5 May 2021, the landlord sent a newsletter to all residents of the building confirming that it had received the fire engineers’ report and it had instructed them to provide some additional information regarding the “percentage make-up of the external fabric” of the building. The revised report would be forwarded to the landlord’s solicitors as part of a legal claim against the original developer of the building. The landlord confirmed that it would undertake remedial works to mitigate the fire risk and that it would instruct the fire engineers to draw up a remedial scheme of works.
On 13 May 2021, the landlord wrote to the resident and said it would reference the costs of the remedial works as part of the management pack that it would send to the resident’s solicitor. The landlord confirmed to the resident on the next day that it had sent the management pack to the resident’s solicitor (this Service is unaware of whether the costs of remedial works were included in the management pack).
On 25 May 2021, the solicitor representing a potential buyer of the property contacted the landlord and requested a copy of the EWS1 for the building as this was required by the buyer’s mortgage company. The landlord wrote to the potential buyer and her mortgage broker on 27 May 2021 and confirmed that as the building was below 18m, the landlord would not be commissioning an EWS1.
The landlord sent a newsletter to all residents of the building on 1 June 2021 and said it was reviewing the reports from the fire engineers.
On 21 June 2021, the mortgage broker of a prospective buyer of the property wrote to the landlord to confirm that the mortgage lender required an EWS1 for the building and this was further confirmed by the prospective buyer in a text message sent to the landlord on 24 June 2021 stating that the information already provided by the landlord was insufficient for the mortgage lender.
On 25 June 2021, the Ombudsman forwarded a complaint to the landlord which it had received from the resident. The landlord therefore raised a stage one complaint on behalf of the resident. The resident had contacted the Ombudsman to say that he was dissatisfied with the landlord’s response to his request for an EWS1 and also with the communication in relation to the cladding.
On 28 June 2021, the landlord wrote to the resident and stated:
1. The landlord would extend the expiry date of the property valuation to 8 October 2021;
2. The last property sold within the block had been in July 2020, but the landlord could not guarantee that the prospective buyer’s application would be successful;
3. A further assessment of the cladding was necessary, following which an EWS1 form would be produced. It anticipated that the form would be produced within 12 weeks;
4. The landlord confirmed that the building was below 18m and had no timber cladding. The landlord said it was unable to supply the inspection report.
The landlord sent a newsletter to residents of the building on 6 July 2021, in which it stated the following:
1. The landlord had reviewed Government and RICS guidance and buildings under 18m needed to be individually assessed to determine whether they required an EWS1;
2. The EWS1 required an invasive external inspection;
3. The building was inspected, but the fire engineers had asked for other areas to be opened up before they would give their final assessment;
4. An EWS1 would be issued and the inspection, assessment, reporting and production of the EWS1 could take around 12 weeks.
5. The landlord clarified that the EWS1 was not a statement of safety and was only required in relation to mortgages;
6. The landlord advised residents that it was aware of cases where lenders had refused mortgages despite “a well rated EWS1 form”.
The landlord also confirmed the above advice in a letter to the resident’s MP on 8 July 2021.
The resident wrote to the landlord on 13 July 2021 and stated the following:
1. He had contacted the landlord prior to starting the sales process and requested an EWS1 because he was aware that most lenders required a favourable EWS1 in order to lend money;
2. The resident felt that the landlord had a duty of care to assist residents who were trying to sell their property;
3. The landlord had repeatedly advised him that an EWS1 was unnecessary because the building was under 18m;
4. The resident stated that had the landlord advised him in November 2020 that it was carrying out tests to the cladding, he would have waited for the results and planned accordingly;
5. The resident stated that he was informed on 24 December 2020 about the tests;
6. The resident said the events had created stress for him and his family and affected their health and well-being.
The resident wrote to the landlord on 14 July 2021 to say that the landlord should buy back the resident’s share of the property.
The landlord sent its reply to the stage one complaint on 16 July 2021 and stated the following:
1. The landlord had been correct when it advised the resident in December 2020 that an EWS1 was not required because the building was under 18m;
2. An assessment of the building would have been needed to determine whether an EWS1 was required;
3. The landlord had provided information on its website about selling homes and the website made it clear to residents that it was a difficult time to sell;
4. Following new Government and RICS guidance in March 2021, which meant that some buildings below 18m required an EWS1, the landlord had decided that the building would require an EWS1. The landlord had therefore commissioned an EWS1 for the building;
5. The building had now been inspected by fire engineers and they had asked for further areas to be opened up for them to complete their final assessment and produce an EWS1, which could take up to 12 weeks;
6. The landlord reiterated that the EWS1 was not a statement of safety and was only required for mortgages, and as such the landlord did not have control over financial institutions and their assessment of risk.
The resident replied on 19 July 2021, which was treated by the landlord as a request to escalate the complaint to stage two. The resident clarified that it had first contacted the landlord in October 2020 regarding the possibility of staircasing or selling and had asked the landlord whether it would be prepared to obtain an EWS1. The resident said he had decided to sell the property at the end of February (2021) “only after reassurances from [the landlord]”, including conversations with the landlord that “flats had still sold despite having unfavourable fire reports”. The resident said that had he been given an EWS1 at the start of the process, it would have helped him “to make good and proper decisions”.
There were further exchanges of emails between the landlord and resident during July 2021, in which the resident said that he should have been advised correctly at the start and therefore the landlord should buy back his share of the property. The landlord said that it’s policy was not to buy back properties and the advice given at the time about the EWS1 was in line with Government guidance. The landlord confirmed that it was working to arrange the final inspections, review the report and then provide an EWS1.
On 12 August 2021, the landlord wrote to the resident and confirmed it had received the fire engineers’ report and had concluded that an EWS1 form was no longer required and therefore it would not be issuing one. The fire engineers would be investigating additional areas to establish the exact construction in certain locations. The landlord said it had instructed its solicitors to put the original developer on notice of possible legal action.
The landlord sent a follow-up email on 18 August 2021 and apologised for any confusion it may have caused. It said that although Government guidance did not require buildings under 18m to have an EWS1, the landlord had decided that an EWS1 would be issued after further investigations had been carried out.
The landlord sent a newsletter to residents of the building on 26 August 2021, in which it confirmed that it had instructed its solicitor to put the original developer on notice of possible legal action. The landlord advised residents that it could not say when the EWS1 would be issued as this was dependent on communications with the developer.
On 8 September 2021, the landlord sent its stage two reply, in which it stated the following:
1. In October and December 2020, the resident was advised that the building was under 18m and therefore did not require an EWS1. The resident was informed that if valuers or lenders did require one, they should provide a written explanation of the reason;
2. The landlord quoted various emails it sent to the resident, which repeated the above message;
3. The landlord said that the information given to the resident that he could go ahead with the sale should he choose, was correct given that an EWS1 was not required for the block and therefore should not impact on the resident’s ability to sell the property;
4. Between November 2020 until August 2021, residents had received regular updates via monthly newsletters;
5. Decisions to proceed with the sale were at the resident’s own risk because the landlord had advised him on 21 April 2021 that the landlord could not advise on lenders’ criteria for requesting an EWS1;
6. In May 2021, the lender for a prospective buyer had confirmed that an EWS1 form would be required in order for the sale to proceed;
7. The landlord had advised the resident that it could not give a timescale for issuing the EWS1, as this was dependent on discussions with the original developer;
8. The landlord acknowledged that the matter had been ongoing for some time and had caused disruption and therefore offered a goodwill gesture of £200.

Events after the landlord’s final response letter

There was a further exchange of emails between the resident and landlord in September 2021, during which the resident said the landlord had disregarded his concerns about not issuing an EWS1 and the landlord replied that it had followed the guidance available at each stage. The resident rejected the landlord’s offer of £200 and said this did not equal the level of distress that he had experienced.
On 13 October 2021, the resident wrote to the landlord and the Ombudsman to advise that the prospective buyer’s lender did not require an EWS1, but needed certain questions about the cladding answered by the landlord. The resident said that he had originally been informed by the landlord that the EWS1 would be available in October 2021, but had seen on social media that the likely timescale was now November or December 2021. The resident said the landlord had been negligent in not advising residents about the change of timescale.
The landlord sent a further newsletter to residents of the building on 24 November 2021. Between November 2021 and February 2022, the resident sent various requests to the landlord for updates and a copy of the final report produced by the fire engineers following their investigation into the cladding.
On 6 April 2022, the resident wrote to the landlord and stated that the prospective buyer’s lender had refused the mortgage application on the basis that no remedial work was scheduled and there was no guarantee that leaseholders would not be recharged the cost of the works.
On 8 April 2022, the landlord sent a newsletter to residents of the building stating the following:
1. The fire engineers’ final report was still undergoing final amendments;
2. During the fire engineers’ inspection, some problems had been identified regarding cavity barriers that had been incorrectly installed or were missing;
3. The landlord was still in discussions with its solicitors regarding potential legal action against the original developer;
4. The landlord acknowledged that the potential legal action could make it difficult for residents wishing to sell their property.
On 5 May 2022, the resident contacted the Ombudsman to raise concerns that when the property was sold to him in 2010 it did not meet the building regulations in force at the time.
The resident wrote to the landlord on 5 July 2022 summarising the events from when the resident embarked on the process of selling the property, including his requests for an EWS1 and a meeting he had attended with the landlord on 14 March 2022, during which he was told about ‘cavity defects’ in relation to the building. The resident said he did not feel that residents should have to wait 18 months for the outcome of the legal action against the original developer.
The landlord sent a newsletter to residents of the building on 7 July 2022, in which it advised residents that the original developer had applied for a Company Voluntary Arrangement (CVA), which would prevent any further claims, and therefore the landlord had formally challenged the CVA. The landlord was seeking legal advice on whether it could carry out remedial work to the block in the meantime.
The landlord wrote to the resident on 18 July 2022 and reiterated that, in its view, it had given the correct advice in 2020 regarding the EWS1 and that the RICS guidance had changed in early 2021. The landlord stated that it could not send a copy of the fire engineers’ invasive inspection report to residents as it was now covered by “legal privilege” in relation to the legal case against the original developer.
On 18 April 2023, the landlord advised this Service that its legal challenge against the original developer had concluded. It has said that with the introduction of new Government advice (PAS9980:2022) and Fire Risk Appraisals of External Wall construction (FRAEWs), it will be appointing fire engineers to carry out the appraisals and will then formulate a remediation plan (if remediation is recommended by the fire engineers).

Assessment and findings

Scope of the investigation

On 5 May 2022, the resident wrote to this Service and stated that the property should not have been sold to him by the landlord in 2010 because it did not meet the building regulations at the time it was sold. The resident stated that the landlord had not carried out the proper checks on the building during or after construction. The Ombudsman is not in a position to decide whether the property was mis-sold to the resident or whether the landlord had been negligent in checking that the building met the building regulations. Nor can the Ombudsman consider a formal complaint about matters that were not brought to the attention of the landlord within a reasonable time of those matters arising, which is usually six months. Therefore, this investigation will not include these matters, the resident may wish to obtain their own legal advice on the matter of being mis-sold the property.

The landlord’s response to the resident’s request for an EWS1 form

The landlord’s website sets out its position regarding the issuing of EWS1 forms. In November 2020, the following information was included on its website:
1. The landlord was prioritising buildings over 18m for investigation works and these works could take some time to complete as there were only a limited number of qualified experts nationally to undertake the work;
2. If remedial works were needed following the detailed investigations, the landlord would contact the residents to explain the works and the timescale for them to be completed;
3. The landlord was aware of “a few instances” where lenders had asked for an EWS1 for a building below 18 metres. If this were to be the case, the landlord would not be able to provide an EWS1 form;
4. The landlord would be able to provide a statement confirming that a building is under 18 metres and the status of the cladding used on the building.
5. If a lender did request an EWS1 for a building under 18 metres, the guidance was that they should include justification about why they have asked for this as part of the request;
6. The landlord recommended that the resident and any prospective buyer should speak to a mortgage adviser if using one, or any lenders involved, to understand their approach to the Government’s advice notes before spending any money.
The resident wrote to the landlord on 14 October 2020 and asked for details about the height of the building and its EWS1 status. The landlord wrote to the resident on 14 and 16 October 2020 and provided information to alert the resident about the nationwide problems regarding fire safety and mortgages. The landlord included a link to fire safety information on its website. The landlord also wrote to the resident on 2 November 2020 to confirm that as the building was under 18m and there were no concerns with the building, it did not intend to commission an EWS1. The resident continued to request the EWS1 on various occasions during November and December 2020. While this Service understands the reasons for the resident requesting the EWS1, i.e. because he was aware that many lenders were asking for the form, the EWS1 form expressly stated that it should not be used for purposes other than where a building is over 18m or where specific concerns exist. As the landlord reported that it had no concerns about the cladding prior to carrying out the intrusive survey, the view of this Service is that the landlord’s initial decision not to produce an EWS1 was reasonable because:
1. The decision was in line with the RICS guidance and information specified on the form;
2. The landlord’s website explained that, in relation to investigation works, it was prioritising buildings over 18m and buildings where it considered there to be most potential risk;
3. The landlord’s website stated that if lenders required an EWS1, then they would need to provide justification with their request to the landlord;
4. The landlord’s website advised residents to speak to a mortgage adviser or lender to understand their approach to cladding before committing any money.
The landlord wrote to the resident on 25 February 2021 to say it was unable to advise the resident whether a buyer was likely to obtain a mortgage as lenders had different approaches. The landlord wrote again on 21 April 2021 and gave a similar message, which was that it could not contact the financial adviser of a potential buyer to discuss whether a lender would require an EWS1. Given that mortgage lenders operate independently and therefore may adopt different approaches, it was reasonable for the landlord to refuse to provide advice about the likelihood of a lender requiring an EWS1 as this would depend on the individual lender.
The landlord changed its position regarding the EWS1 and wrote to the resident on 28 June 2021 to confirm that a further assessment of the cladding was required, after which it would issue an EWS1 in approximately 12 weeks. The landlord sent a newsletter to residents on 6 July 2021 in which it confirmed that it had reviewed the latest guidance from Government and RICS and would now need to assess buildings under 18m individually to determine whether an EWS1 was required. Therefore, the building would undergo an invasive external survey, after which a report and an EWS1 would be produced. It was anticipated that this would take about 12 weeks. Given that the RICS guidance had changed and had introduced specific criteria for deciding whether an EWS1 was needed for buildings below 18m, it was right that the landlord reviewed its position and advised residents accordingly. The Ombudsman has considered whether the landlord should have advised the resident earlier than 28 June 2021 that it would be producing an EWS1. Although the RICS guidance was issued on 8 March 2021 (effective from 5 April 2021), the landlord’s newsletter dated 5 May 2021 showed that it was still awaiting additional information at that stage regarding the cladding on the building. Therefore, taking this into account, the view of the Ombudsman is that the landlord notified the resident within a reasonable timescale about its new plans to produce an EWS1 for the building.

The landlord’s communication regarding the cladding

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.
The landlord wrote to the resident on various occasions between October 2020 and April 2021 to confirm that it did not intend to produce an EWS1 for the building and that it could not provide advice on whether a buyer was likely to succeed in obtaining a mortgage on a property within the block. The landlord also made it clear via its website that its initial priority was to carry out testing on taller blocks. Although the resident was dissatisfied with the landlord’s decision not to produce an EWS1, the landlord acted reasonably by communicating a consistent message to the resident that it would not be producing an EWS1 and gave the reasons for this.
The landlord sent a newsletter to residents of the building on 24 December 2020, in which it advised residents that it would be carrying out intrusive surveys of the building in January 2021 as a matter of good practice. A further newsletter was sent to residents on 3 February 2021 confirming that the surveys had taken place to investigate the external wall materials and the consultant’s report was due at the end of February 2021. Therefore, the landlord took reasonable steps to communicate its short-term plans to test the building’s external cladding in January and February 2021.
The landlord continued to send newsletters to residents of the building during 2021, for example in May, June, July, August and November 2021. This was a positive step as it enabled the landlord to keep all residents of the building updated on progress. However, given that the resident was in the process of selling his property, the Ombudsman has found there was a lack of timely, reliable and substantive information given to him regarding the timescale for producing the fire engineers’ report, the EWS1 (once the landlord had decided to produce it), and the plan for remedial work in relation to the cladding.
In terms of the fire engineers’ report, the resident had been expecting to receive a copy at the end of February 2021 (as advised by the landlord in its newsletter dated 3 February 2021). However, over a year later on 8 April 2022, the landlord sent a newsletter advising residents that the fire engineers’ report was still undergoing final amendments, and it was not until 18 July 2022 that the resident was advised he could not be sent a copy of the report due to “legal privilege”. The lack of information about the report in the interim period meant that the resident had to write to the landlord on various occasions asking when the report would be available. It was unreasonable that the landlord did not provide a clear timetable for producing the report and regular progress updates.
In terms of communication about the EWS1 following its decision to issue one, the landlord advised the resident on 28 June 2021 that a further assessment of the cladding was necessary, after which an EWS1 form would be produced. It was anticipated that this would take about 12 weeks. This advice was repeated by the landlord in its stage one reply on 16 July 2021. However, on 26 August 2021, the landlord sent a newsletter to residents stating that it could not give a timescale for issuing the EWS1 as this was dependent on discussions with the original developer. The subsequent evidence seen by this Service covering the period up to and including July 2022 indicates that the landlord did not provide any further updates to the resident about producing the EWS1 form. This lack of communication with the resident was unreasonable given that he had requested the EWS1 on several occasions.
There was also a lack of communication with the resident about future remedial works. The landlord stated in its newsletter dated 5 May 2021 that it would undertake remedial works to mitigate the fire risk (in relation to the cladding). However, although the landlord wrote to residents on 8 April 2022 to say that the fire engineers had found problems with the cavity barriers, it did not provide any information about when remedial works might be undertaken. The landlord then wrote to residents on 7 July 2022 to say it was challenging the original developer’s application for a CVA and was seeking legal advice on whether it could carry out remedial works in the meantime. Therefore, it was more than a year between the landlord advising residents in May 2021 that it would undertake remedial works and subsequently advising them in July 2022 that it was seeking legal advice about whether it could undertake remedial works. The lack of communication during the intervening period was unreasonable given that this could affect the resident’s prospects of selling the property.
The Ombudsman understands that cladding issues are complex and in many cases it requires an intrusive survey to uncover deficiencies. In this case, the situation was further complicated because the landlord was seeking to claim against the original developer for the cladding deficiencies. However, it was unreasonable that the resident did not receive clearer and more timely communication regarding the availability of the fire engineers’ report, the EWS1 form (after the decision had been taken to produce one), and updates regarding remedial works. The lack of communication with the resident made the process of selling his home more stressful than it might otherwise have been. The resident often had to write to the landlord for updates and therefore had to spend time and trouble seeking information from the landlord. The Ombudsman appreciates that there were legal issues being considered by the landlord, but the landlord should have recognised that it was important to maintain regular contact with a resident who was seeking to sell his property. The landlord recognised in its stage two reply that the issues relating to the cladding “had been ongoing for a lengthy amount of time” and offered the resident £200 as a goodwill gesture.
Although this Service welcomes the landlord’s financial offer in order to resolve the dispute, the Ombudsman does not consider the landlord’s offer to be proportionate given the anxiety, time and trouble that the resident experienced. The Ombudsman has therefore ordered the landlord to pay a total of £500 to the resident. This sum is in line with the Ombudsman’s Remedies Guidance for cases where a landlord has acknowledged failings and made some attempt to put things right, but the offer was not proportionate to the failings identified by the Ombudsman’s investigation.
This Service has noted that the resident stated in his email dated 19 July 2021 that he only started the sales process after he had been given reassurances by the landlord, including during conversations. While the Ombudsman is not questioning the resident’s account of events, based on the evidence seen, the Ombudsman has concluded that the landlord’s website and the correspondence it sent to the resident were consistent in making it clear that the landlord had no control over the decisions made by lenders.
The resident wrote to the landlord on various occasions and said it should buy back the resident’s share of the property. The landlord refused the request and said its policy was not to buy back properties. The landlord’s resale policy states: “We understand that some residents are desperate to move and can feel trapped by this situation. Unfortunately while we empathise with people who want to move we are not able to buy back individual homes, or shares of individual homes”. As the landlord’s policy clearly stated that its policy was not to buy back properties or shares of properties, the landlord’s refusal to buy back the resident’s share of the property was reasonable.

The landlord’s complaints handling

The landlord operates a two-stage complaints process and aims to respond to stage one complaints within ten working days and stage two complaints within 20 working days. If the landlord is unable to respond within the timescales, it will write to the resident and provide an explanation and a date when the resident will receive a response. The landlord’s complaints policy says that any extension should not exceed a further ten working days without good reason.
The landlord logged a stage one complaint after receiving details of the complaint from the Ombudsman on 25 June 2021. The landlord acknowledged the complaint on 2 July 2021 and sent its full response to the resident on 16 July 2021, which was 15 working days after it received the complaint from the Ombudsman. Although the reply was outside of the landlord’s published timescale, the time taken by the landlord was not excessive given that the resident had not sent the complaint directly to the landlord.
The resident then asked for his complaint to be escalated on 19 July 2021 and the landlord replied to the stage two complaint on 8 September 2021. This was 37 working days after the resident’s request for escalation. The landlord’s stage two reply did not apologise for the delay in responding, nor has this Service seen evidence that the landlord contacted the resident beforehand to provide an explanation for the delay and a new timescale. The delay in replying and lack of apology were therefore inappropriate.

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 request for an EWS1 form.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in relation to its communication regarding the cladding.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure by the landlord in its complaints handling.

Reasons

The landlord’s decision not to produce an EWS1 form was in line with the RICS guidance and the instructions on the form itself. Following the change in the RICS guidance effective from 5 April 2021, the landlord reviewed its position and stated that it would produce an EWS1.
The landlord took reasonable steps to communicate its short-term plans to test the cladding in January and February 2021. However, it failed to provide timely updates to the resident regarding the fire engineers’ report, the timescale for producing the EWS1 and information about the future remedial works.
The landlord failed to acknowledge or apologise for the delay in sending the stage two reply.

Orders and recommendations

The landlord is ordered within four weeks of this report to:
1. Pay the resident compensation of £500 for its failure to adequately communicate with the resident about its plans for the cladding (this sum includes the £200 already offered by the landlord).
2. Pay the resident £50 for the delay in complaints handling.
3. Write to the resident with a clear roadmap, including timescales, for identifying and undertaking any remedial works that may be required to the cladding and underlying systems, and for producing an EWS1.