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Thames Valley Housing Association Limited (202128369)

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REPORT

COMPLAINT 202128369

Thames Valley Housing Association Limited

17 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

  1. The complaint is about:
    1. The landlord’s handling of the resident’s request for a EWS1 (Exterior Wall Safety form) to enable him to ‘staircase’ to 100% ownership.
    2. The associated complaint.

Background

  1. The resident and his wife are leaseholders of a three-bedroom flat on the first floor of a low-level block since 2018. The property is managed by the landlord, a housing association.
  2. The resident owned 25 % of the property under a shared ownership scheme and applied for a mortgage to purchase the remaining 75%. The resident asked the landlord for an EWS1 form on 21 July 2021 and chased this several times, advising that the mortgage offer would be withdrawn if not received by 17 August 2021.
  3. On 19 August 2021 the landlord advised the resident’s mortgage broker that it did not have an EWS1 for the block and it was not on the programme for that financial year. It said that an EWS1 should not be required as the building was just four storeys high with an external brick wall system. It asked if any other documentation would suffice. The resident complained on 31 August 2021 and said additional costs should be met by the landlord due to its delay. The resident’s mortgage offer expired on 31 August 2021, and the stamp duty ‘holiday’ ended on 30 September 2021.
  4. The response on 1 October 2021 did not uphold the complaint as the landlord said it had replied to the resident’s request within 20 working days. The resident escalated the complaint on 4 October 2021 and asked for evidence from the fire brigade if no EWS1 form was available. The resident’s sale completed in December 2021, and the resident requested that his losses of almost £12,000 be met by the landlord. The final response on 13 January 2022 offered to refund the landlord’s own costs of £120 and said the resident’s complaint did not meet the criteria to be reviewed further. Once the case was brought to the Ombudsman, the landlord offered £100 compensation for distress and inconvenience due to poor communication.
  5. The resident remains dissatisfied by the landlord’s incompetence around obtaining the EWS1 form as he says that had it acted in time, he would have avoided paying stamp duty and higher fees, which he wants compensated.

Assessment and findings

Assessment

EWS1 form request.

  1. The landlord has provided an information leaflet headed, ‘tall buildings and wall materials’. It says that some lenders are asking for independent certification of building safety for flats in the form of an EWS1 form. The landlord says that conducting the tests will take considerable time, and that some lenders are asking for EWS1 for buildings outside the intended criteria. Whilst residents cannot organize their own private intrusive inspections, the request for a EWS1 is outside the control of the landlord as it depends on the lender. The landlord advises leaseholders to review whether they wish to start a mortgage transaction where a EWS1 form is currently required, as it will not refund any legal or valuation costs. Any administration charges from the landlord will be refunded if the transaction cannot proceed due to this issue.
  2. The landlord’s ‘staircasing and sim sale policy and procedures’ leaflet effective February 2021 says at paragraph 4.6 that ‘the Shared Owner is responsible for the cost of the valuation’. Paragraph 6.1 says that ‘it is policy to provide a consistent and supportive customer service to all Shared Owners. To assist with this, all Shared Owners will be advised to read the guide ‘Buy a bigger share.’ Paragraph 6.2 says ‘clear and concise communication between (LL), the share owner and the solicitors is essential throughout the process’. It is noted that the ‘Buy a bigger share’ guide explains the staircasing process but does not discuss EWS1.
  3. The Ombudsman’s guidance note on fire safety and cladding sets out that, as the government’s expectations about this matter are only currently detailed in guidance, there is an element of discretion for a landlord as to how and when it chooses to comply. The Ombudsman’s guidance further advises that, when investigating a complaint relating to 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?
    2. how has it communicated with residents regarding the situation and was this communication appropriate?
    3. how has it responded to the individual circumstances of the resident?
  4. In this case, the landlord advised the resident’s mortgage broker on 19 August 2021 that it did not have the EWS1 form, 21 working days after the request from the resident on 21 July 2021. The resident later stated that the form had been first requested in May 2021. There is no evidence of a previous request, and the email of 21 July 2021 does not refer to any earlier discussion or request. For the purposes of this investigation, given that no earlier date can be evidenced, the Ombudsman has considered 21 July 2021 to be the date of the initial request.
  5. The landlord provided the Fire Risk Assessment (FRA) on 1 September 2021, the day after the mortgage offer expired, and explained that it did not have any documents from the fire brigade as had been suggested by the broker on 31 August 2021. The landlord said it was unable to provide the assurance that the information provided in the FRA was fully accurate, hence the need to verify how the building is constructed through intrusive investigations.
  6. It is not clear when the information regarding tall buildings was issued to the resident but the landlord’s internal email dated 22 December 2021, said that ‘all staircasing enquiries receive the attached email/guidance in regards to the process and EWS1’.  The leaflet advised residents that an EWS1 is likely to be required for buildings ‘‘typically over 18 meters in height’’ (approximately 6 storeys) but ‘’by exception there may be some residential buildings below 18m which may have ‘specific concerns’. These would be 4 & 5 storey buildings in scope which may have combustible cladding or balconies with combustible materials, which are only a clear and obvious danger to life safety and may require remediation in accordance with the latest Government advice.”
  7. The valuation report of May 2021 said that the property is on the first floor of a five-storey block. The building was anticipated to be of traditional masonry construction beneath a flat roof, with most areas finished in fairfaced brickwork. This suggests that the property would not fall within the scope of the EWS1, as although it was 5 storeys high, there is nothing to suggest the evidence of cladding or combustible materials on the balcony. The resident did not specifically request an FRA, but this was supplied by the landlord on 1 September 2020, albeit with the caveat that it was unable to provide assurance that the assessment was accurate.  Whilst this may render the assessment meaningless, it is apparent that the mortgage did complete on 14 December 2021, which indicates that the lender was able to proceed without the EWS1, albeit following a new mortgage offer.
  8. The landlord alerted residents to the possibility of lenders requiring an EWS1, but also implied that it should not be required for this property. The valuation report did not suggest any potential issues and correspondence from the broker on 19 July 2021 advised that ‘all documents…had been signed off’ and the lender was in the process of finalising the mortgage offer. Two days later the broker then said that final checks had resulted in a request for the EWS1 form. The resident requested the form that afternoon and was advised on 26 July 2021 that the request may take up to ten working days. As the resident replied the next day that this was not quick enough, the landlord informed him that it had asked for a quick response from the department concerned.
  9. It is noted that the same email from the landlord dated 29 July 2021 asks the resident to sign and return the staircasing application which was sent to him on 24 May 2021. The form is dated as signed by the resident and his wife on 10 and 11 August 2021 respectively but says at section 2 that the valuation expiry date was 10 August 2021. The valuation survey dated 11 May 2021 says at section 13.0 that it is valid for a period of three months from the date of the inspection. Given this, it appears that without a new survey, the mortgage offer would not be valid after 10 August 2021, 14 working days after the request for the EWS1 form.
  10. The resident sent further chase emails on 10 August and 17 August 2021 as did his mortgage broker on 11 August 2021, stressing the importance of a quick reply as the mortgage would expire. The landlord emailed the broker on 19 August 2021 and said that it did not have an EWS1 for the building and would not for the foreseeable future. It said that the building should not require the EWS1 as it was four storeys high and had an external brick wall system. It was reasonable that it subsequently asked whether any other documentation would be acceptable.
  11. Within the ‘tall buildings’ leaflet, the landlord set out its long-term plans, including its plans to inspect the buildings with the highest risk first. Its stage one complaint response explained further:

“We welcomed the latest statement from the Secretary of State for Housing, Communities, and Local Government on 21 July that supported recommendations that EWS1 forms should not be required on buildings below 18m, this is something that (we) have been advocating for, we now need further information from other organisations and mortgage lenders as to what this announcement would mean in practical terms”.

  1. Accordingly, the landlord had long term plans for compliance with the Government’s fire safety and cladding guidance, and these appear fair and reasonable. The Ombudsman cannot force the landlord to undertake the testing, even where the property is above the stated height, nor can we force a surveyor to release a true valuation.
  2. The requirement for the EWS1 form was made by the lender, but this could not reasonably have been foreseen by the landlord, when the evidence suggests that the property would not fall under the criteria to need one. The landlord acknowledged that the email was not responded to promptly, but from the evidence above, the time available to provide the document prior to the valuation expiring was tight. It would appear from the emails provided by the resident that there had been delay earlier in the mortgage process in respect of income verification, which meant that when the lender asked for the EWS1, time was rapidly running out.
  3. There is no evidence that the landlord was responsible for the first mortgage offer expiring and having advised the resident that the property was not due to be inspected in the foreseeable future, the landlord was not responsible for the mortgage not completed prior to the stamp duty holiday ending on 31 October 2021. Given the mortgage then completed six weeks later, it would seem the lender was able to use discretion over the EWS1 form.
  4. The second consideration in the Ombudsman’s guidance was met when the ‘tall building’ information was provided to residents enquiring to staircase. This informed residents of the implications of the EWS1 form and managed expectations by warning residents that some lenders are going beyond the Royal Institute of Chartered Surveyors (RICS) criteria, and that the landlord would not reimburse costs incurred in relation to the transaction.
  5. The landlord also took the resident’s individual circumstances into account by providing the FRA form and asking if there was anything else that it could provide instead. Ultimately the mortgage completed without further evidence from the landlord. Unfortunately, it appears from the evidence that delays in the mortgage process were caused by additional questions from the lender in regard to the resident’s income, and a late request for the ESW1. However, it was clear that the resident was chasing a time critical response. The landlord said a response may take up to ten working days on 26 July 2021, but did not provide a definitive answer in that time. Whilst this may not have changed the outcome, it was poor customer service, and it is fair that the landlord recognise this.
  6. The timing around the stamp duty holiday ending caused a considerable additional expense for the resident and his frustration is appreciated. However, it has not been evidenced that the delay by the landlord was responsible for the additional costs incurred by the resident and this Service has found no grounds under which the landlord should reimburse them.
  7. It is noted that the landlord offered the sum of £100 to the resident in respect of poor communication as it said that whilst the correct decision was reached, the communication was not always straightforward, and the resident had to chase responses. There was a failure to respond to the resident within the time advised, which would reasonably have caused the resident some stress at this time. The Ombudsman’s remedies guidance allows for financial compensation of between £50 and £100 in cases where there has been a service failure of short duration, which may not have affected the overall outcome but caused distress and inconvenience.
  8. Accordingly, the sum of £100 offered by the landlord is a reasonable sum to resolve this part of the complaint. The Ombudsman is also aware that the landlord agreed to refund the £120 cost for an updated desktop report while the resident awaited confirmation of whether an EWS1 was needed.

Complaint handling

  1. The complaint policy provided by the landlord effective May 2021, says that stage one complaints will be responded to within 10 working days. The policy says that stage two responses will be issued within 20 days.
  2. The policy also says that if the landlord is unable to respond within the timescales at stage one or two of the complaint process, it will keep the resident informed and agree new response times.
  3. In this instance, the landlord replied to the stage one response outside of the published timescale. It did inform the resident, after the due date, of the new response date, but neither this email or the eventual response included any apology or explanation for the delay.
  4. The stage two response was considerably outside the landlord’s published timeframes, and no updates have been seen to keep the resident informed of the delay. The final response does not refer to the delay at all, despite being over two months late.
  5. There was a failure to keep to the landlord’s own timescales and to keep the resident informed of delays. The Ombudsman’s remedies guidance allows for financial compensation of between £50 and £100 in cases where there has been a service failure of short duration, which may not have affected the overall outcome but caused distress and inconvenience. Accordingly, the sum of £100 in respect of the delays in the complaint responses being issued would be appropriate in this case.

Determination

  1. In accordance with paragraph 53 (b) the member has offered redress to the complainant prior to investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its complaint handling.

Orders

  1. Within four weeks of the date of this determination, the landlord should provide evidence to the Ombudsman that it has paid the resident £100 in respect of the delay in the complaint responses being issued and lack of appropriate updates.

Recommendations

  1. It is recommended that the landlord pay the sum of £100 already offered in respect of the delay in responding to the request for an EWS1 form.
  2. It is recommended that the landlord to consider contacting the builder of properties, to establish if an EWS1, has previously been completed.