Tower Hamlets Homes (202122079)

REPORT

COMPLAINT 202122079

Tower Hamlets Homes

14 December 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 handling of the resident’s concerns about fire safety, including how it processed the EWS1 form.
2. The landlord’s handling of the resident’s complaint.

Background and summary of events

Background

The resident holds a secure tenancy with the landlord. The landlord is a managing agent for the local authority. The property is a flat within a stand-alone 18 storey block of 66 flats. 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 (6 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’ 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 over 6 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 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.
The landlord operates a 2 stage complaint policy:
1. Stage 1 complaints will be responded to within 20 working days
2. Stage 2 complaints will be reviewed by the local authority and responded to within 20 working days
3. Complaint responses can be extended by 10 working days at both stages for complex cases.

Summary of events

In July 2021 a fire risk assessment (FRA) was undertaken and found that the building was of moderate risk. It noted that the property had been maintained to an adequate standard, but confirmation was required as to whether there were combustible decking materials on flats with unshared balconies.
The resident contacted his local MP and the mayor between October 2021 to January 2022. He said that:
1. The delay in issuing him with an EWS1 was preventing him being able to purchase the property via the right to buy (RTB) scheme. No mortgage lender would lend without it, and he was concerned that the price of the property he had been quoted would change over time.
2. The landlord was not doing enough to protect people living in high rise flats. It was “cutting corners” trying to save money. He felt the FRA it had undertaken was poor and he had been left “waiting for an accident to happen”.
3. He wanted his rent refunded because he felt he had been living in a property which was unsafe. If the landlord could not refund his rent, he wanted to be moved to another property.
On 25, 26 November 2021, 22, 24 December 2021 and 14, 20 January 2022 the landlord sent a number of responses to the resident, the local MP and the mayor. It said that:
1. It had complied with all requests since the Grenfell tragedy and had met all its legal obligations. An external wall survey (EWS) was required under the government guidance. Whilst there was a national shortage of suitable qualified experts who could complete the surveys, it had been in negotiations with one of the leading engineering consultants about the issue. As the property had no cladding, it believed there was little chance of finding significant defects.
2. A proposal for a pilot project for around 20 of its highest buildings was awaiting approval by the local authority. This included the building the resident lived in. It anticipated that it could complete the EWS and obtain the EWS1 form by April 2022 “at the latest”.
3. It did not agree with comments that the resident had made about being negligent, “cutting corners” or that it’s FRA had been poor. It did not believe the building was unsafe. The building had been assessed as moderate risk which was typical for a high rise building. It was in the process of progressing the recommendations made, of which only 2 items were considered urgent, and related to residents storing items outside of their front doors.
4. It understood the frustrations the delays had caused and the impact on leaseholders and potential leaseholders. It wanted to ensure that it obtained a high quality EWS and did not carry out works that were not necessary.
5. It would not be refunding the resident’s rent.
6. A period of suspension on his RTB application was in force until the EWS1 was completed. The price it had quoted him in the past to purchase his property would remain the same. If the resident wished to discuss rehousing, he could speak to his local housing office and lettings team.
In January 2022 the resident approached the Ombudsman and said that the landlord had not acted quickly enough, and he was being “given the run around” with no satisfactory answer to his concerns. He felt the building was at risk and it was affecting his mental health. On 10 February 2022 , the Ombudsman intervened and asked the landlord to formally respond to the resident’s concerns via its complaint process.
On 21 February 2022 the landlord wrote to the resident at stage 1 of its complaint process, however it did not send him a copy until 2 March 2022. It said that:
1. It acknowledged he had made a number of similar queries since 2021, and it could “only really repeat” the responses it had given already.
2. The building that he lived in did not have cladding of a similar type to that involved in the Grenfell tower fire. It had no ACM or HPL. This had been confirmed by way of an independent survey into all its high rise buildings.
3. Government guidance required it to carry out an EWS pilot, which it had completed with one of the leading fire engineering consultants. It was awaiting a start date but was likely to have a completed EWS report by late May 2022.
4. A recent FRA gave an overall score of moderate which was consistent with nearly all of its other high rise residential buildings. There were no issues of concern in the FRA and it had no grounds to believe that the building was unsafe.
5. It would update him of the outcome of the EWS when it was received. If any serious defects were identified, then they would be programmed into its work schedule and he would be informed appropriately.
The resident responded on the same day, he said that:
1. He did not believe that the building was safe as it did not have the relevant certification in place. The only reason the landlord was taking action was because he had been pursuing the matter “non-stop”. As far as he was concerned, without the certification, the building was unsafe.
2. It should not have taken him contacting his local MPs and the Ombudsman for the landlord to have responded to him. He felt frustrated and wanted a personal guarantee in writing that he would received the EWS1 before the end of April 2022. He had “lost all trust” in the landlord’s ability to adhere to deadlines and felt it was not taking the matter seriously. He said that the landlord should be fined for negligence because it had failed to acquire the relevant certification within a timely manner.
The landlord responded to the resident informally on 18 March 2022. It said that:
1. It was awaiting for its fire engineering consultants to confirm their programme, but it was anticipated that an inspection would take place in May or June 2022. It would then take approximately a month before it had a finalised survey report.
2. It could not guarantee that he would have the EWS1 by the end of April, but it could share the outcome of the EWS once it had it.
3. It was awaiting the outcome of the building safety bill, which was likely to receive royal assent by July 2022. Once the bill was in place, it could apply for a building safety assurance certificate by presenting a “building safety case” which would demonstrate that the building was safe to live in. It explained the process for this and explained it would take some time. It said it wanted him to appreciate that the EWS would not mean the building was safe in its own right and there were other matters that needed to be considered for overall safety.
4. It was committed to complying with all requirements of the new legislation and it would not accept his assertion that it had been negligent. It would process the EWS1 as soon as possible after the EWS, for a small fee.
After prompting from the Ombudsman, on 4 April 2022 the landlord wrote to the resident and said it had noticed it had not provided him with details of how to escalate his complaint. It provided him with details of how he could do so.
The Ombudsman intervened again and asked that the landlord respond to the resident at stage 2 of its complaint process. The landlord acknowledged the request on 8 April 2022 and said it would be passed to the local authority complaints team.
On 10 May 2022 the local authority issued a stage 2 complaint response. It said that:
1. It was sorry that it had not provided a timely explanation of how to escalate his complaint. It had been brought to the attention of the complaints team and would not repeat the error.
2. It could not guarantee that he would have the copy of the EWS1 at the end of April 2022 as requested. This was because it was awaiting a schedule from the appointed fire engineering consultant. They had since said that a survey would take place in July 2022, and therefore the EWS1 form would not be ready until the end of August, or early September 2022.
3. Due to new legislation within the building safety act, a building safety case would be submitted to the new regulator and would include the EWS, other surveys and evidence. The managing agent would complete the works over the next 2 years.
4. The managing agent had not been negligent. It had agreed to complete EWS as soon as possible, and carry out any safety works where identified.
5. It would share the results of the EWS once it had been received and would provide him with the subsequent EWS1 form for a small fee. If he remained dissatisfied he could contact the Ombudsman.
The resident contacted the Ombudsman in June 2022. He said that it was unacceptable that the expected date for him to have receive the EWS1 had been moved several times. He wanted to be moved to another 1 bedroom property, or compensated for the distress it had caused him since he first raised the matter in November 2021.

Events after the landlord’s final response letter

An EWS was completed by consultants on 20 July, and the report was shared with the landlord on 8 August 2022. It identified that there were “borderline” concerns about the external walls and recommended that a temporary simultaneous evacuation strategy was put in place until the panels were removed and replaced. In response to the survey, the landlord:
1. Implemented a waking watch from 15 August 2022, and changed the block from a stay put strategy to a simultaneous evacuation.
2. Arranged for the fire safety team to hand deliver letters to each property informing residents of the change and reasons behind it. Personal Emergency Evacuation Plans (PEEPs) would be updated at the same time as a door knocking exercise scheduled for 18 August 2022.
On 19 August 2022 the landlord was issued with a deficiency notice by the London fire brigade (LFB). The landlord discussed the outcome of the report with the fire safety consultants, who the same day did a fire risk appraisal of the external walls (FRAEW). The report supported that a temporary simultaneous evacuation strategy was required until identified panels were removed and replaced with alternatives. An EWS1 form was produced with a B2 rating, which meant that remedial works and interim measures were required. It noted that the form could be uplifted to a B1 (low, no remedial works required) rating once the works to the panels had been carried out.
The landlord was in contact with the resident several times throughout September 2022. The resident expressed that he felt “nothing had been done” and he felt he had been “lied to”. In response, the landlord apologised for his dissatisfaction on several occasions and shared the EWS and EWS1 form with him.
Internal correspondence in September 2022 showed that the landlord had difficulties sourcing the required ‘squandrel’ panels due to excessive lead times. It discussed what other options might be available with the fire safety consultants and it was agreed that the landlord could undertake temporary works to construct a fire resistant stud wall against the window fenestration to mitigate the risk. The consultants confirmed that the landlord could remove the waking watch once the temporary works were in place, for a limited period of time.
On 2 October 2022, the resident was informed of the plans for temporary works and removal of the waking watch. He was told he could expect the permanent works would take up to approximately 12 weeks to complete. Once they were done, it would ask for the EWS1 to be reissued. In the meantime, he could discuss rehousing options with the local authority housing team.
Records show that the resident had to chase the landlord on a number of occasions for an update from November 2022. The landlord advised there had been “supply chain issues” which had impacted its ability to source the panels for the permanent works and apologised. He was informed that the installation date was likely to be February 2023. It was later pushed back to April 2023 and then completed by July 2023. On 7 July 2023 the resident was informed the works were complete but it was awaiting a new EWS1 form.
In recent contact with the Ombudsman, the resident has said that he is still not in receipt of the EWS1 form, and the landlord has stopped engaging with him. There had been further delays because the landlord’s contractors had changed and there had been issues with poor workmanship. He said he feels he is owed a “pay out for years of lies” and time wasted.
On 12 December 2023 the landlord informed the Ombudsman that it is awaiting a revised version of the EWS1 following the remedial works completed in the summer. The new version is expected by the end of January 2024.

Assessment and findings

The landlord’s handling of the resident’s concerns about fire safety, including how it processed the EWS1 form.

The Housing Ombudsman released guidance on cladding in October 2020. It recognised that testing based on risk could take some years to complete, and in the meantime it was important that landlords were proactive in communicating their long term plans to residents. It is not disputed that the resident first brought his concerns to the landlord’s attention in November 2021. However no previous correspondence from the landlord to the resident was seen from before this time. It is therefore reasonable to conclude that the landlord had not proactively communicated its long term plans to the resident before November 2021, causing him unnecessary confusion and distress.
Once the landlord became aware of the resident’s concerns, it issued 6 responses between November 2021 to January 2022 to various parties involved in his case. The information it gave across the responses was consistent and provided adequate reassurance of what steps it was taking to address the concerns of fire safety. However, the landlord failed to manage the resident’s expectations in terms of the timeframe to which he could expect the EWS1 form. The landlord was likely aware that there was a national shortage of qualified members of professional bodies who could do the survey and complete the form. Without the EWS scheduled for a specific date, the landlord could not have reasonably guaranteed that the form would be with the resident “by April 2022 at the latest”. By failing to manage the resident’s expectations, the landlord likely contributed to the resident’s feeling that he had been “lied to”.
EWS1 certificates are not a legal requirement but mortgage lenders may require one in order to offer a mortgage to a property within the building. RICS guidance on ESW1 explains that the form is not a ‘life safety’ certificate – it is only for the use of a valuer and lender in determining if any remediation costs affect the value of the property. It was not until 13 March 2022 that the landlord explained this to the resident. A search of the landlord’s website on 11 December 2023 found no information about the EWS1, whereas the local authority have a detailed “FAQ” section which explains what residents can expect from their landlord. It would have been appropriate for the landlord to have signposted the resident to this information at an earlier stage to alleviate his concerns about the purpose of the EWS1 and its process.
Aspects of the resident’s complaint relate to his feelings that the building was uncertified and therefore unsafe to live in. As explained above, the EWS1 is not certification which demonstrates that a building is fire safe. Other surveys are better placed to establish risk of a building, including FRAs. From evidence seen, the landlord has been in regular contact with its fire safety consultants about the building and has acted quickly upon recommendations made both following the EWS and the later deficiency notice serviced by the LBF. It has acted within a reasonable timeframe of the specialised inspections and notified residents appropriately of the need for a waking watch through letters and door knocking.
The landlord’s stage 2 response was accurate in explaining that a EWS would not take place until July 2022 and therefore it was unlikely that a EWS1 would be available until September 2022. Records show that the survey and the EWS1 were produced within this timeframe. The landlord could not have reasonably foreseen the outcome of the EWS until it was undertaken by an independent, qualified fire specialist. Although it is appreciated that the B2 rating may still have impacted the resident’s ability to obtain a mortgage, both the EWS and EWS1 were shared with him in September 2022.
It may help to explain that the Ombudsman is limited as to what can be considered for assessment after conclusion of the internal complaint procedure. It is recognised that remedial works following the EWS were delayed. Correspondence shows that there was regular communication between the landlord’s fire safety consultant which took into consideration the findings from LBF on 19 August 2022. It is not for the Ombudsman to determine whether the delay in sourcing the specific panels that were required was reasonable. However, the landlord would still be expected to proactively communicate any delays and extended timeframes in accordance with its repairs policy. To date, the resident remains confused about the status of the EWS1, causing him prolonged distress. It is unclear whether the landlord has shared the most recent update it provided to the Ombudsman on 12 December 2023.
Within his correspondence, the resident has said that he has struggled to sleep because of concerns about fire safety and has experienced anxiety. Where the Ombudsman identifies failure on a landlord’s part, we can consider the resulting distress and inconvenience. However unlike a court we cannot draw conclusions on the causation of, or liability of impacts on health and wellbeing. This would usually be dealt with as a personal injury claim. It is understood that the resident had legitimate concerns living in a high rise block of flats following the Grenfell tragedy. The situation caused him considerable worry and therefore it was important that the landlord’s communication was clear and proactive to alleviate his concerns.
In this case, there was a failure relating to the landlord’s communication with the resident. It is recognised that the landlord was limited as to how quickly it could obtain the EWS as it was reliant on the schedule from its fire safety consultants. This should have been communicated to the resident as part of the landlord’s long term fire safety plan prior to November 2021. Once the resident informed the landlord of his concerns, it was in regular contact with him. However it failed to manage his expectations by providing him assurances he could expect the EWS1 “by April 2022 at the latest”. Records show he was later provided with the form in September 2022 as expected but further delays have occurred relating to the updated version he requires for his mortgage lender. In failing to provide the resident with the most recent updates, it has been unable to demonstrate that it learnt form outcomes and maintained regular proactive contact.

The landlord’s handling of the resident’s complaint

It is reasonable to conclude that the resident experienced difficulty in raising a complaint to the landlord as he had to enlist of the support of his local MP and mayor to obtain a formal response. The Ombudsman had to intervene and it was not until 2 March 2022 that the resident was issued with a stage 1 response. No explanation or apology was given for the 8 day delay from the date letter was written to sending the resident the response. The delay was unreasonable and contributed to the resident’s frustration. Furthermore, contrary to the Ombudsman’s Complaint Handling Code (the Code) the landlord gave no explanation of how he could escalate his complaint.
It was clear that the resident was dissatisfied with the landlord’s response. He said that he had “lost all trust” and it should not have taken intervention from the Ombudsman for it to have responded to him. The landlord failed to recognise the resident’s contact as a request for escalation and the Ombudsman had to intervene a number of times which was unreasonable.
A stage 2 response followed on 10 May 2022, 47 working days later. Whilst the landlord apologised for the delay, it failed to offer the resident compensation in line with its policy for the time and trouble he had experienced in pursuing his complaint. It would have been reasonable to do so, particularly given the number of times the Ombudsman had to intervene.
It is unclear whether the landlord contacted the resident directly before issuing either of its complaint responses. Contacting the resident to discuss their complaint is key to ensuring that the landlord has a full understanding of the resident’s complaint so that they can respond fully to all points. The landlord’s stage 2 response was comprehensive as to what fire safety measures it was taking and why it needed the EWS. It was realistic in terms of timescales and records show that the EWS was completed as promised in July 2022. However, the response failed to address the resident’s concerns about the overall handling of his complaint which he explained in his contact of 2 March 2022.
Overall there was a service failure in handling the resident’s complaint. Whilst the complaint responses themselves were detailed and comprehensive, the Ombudsman had to intervene a number of times to assist in progressing the resident’s complaint through to conclusion. An order of compensation has been made which takes into account the time and trouble the resident experienced in bringing his complaint.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the resident’s concerns about fire safety, including how it processed the EWS1 form.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the resident’s complaint.

Reasons

The landlord failed to communicate its long term fire safety plans with the resident prior to him bringing his concerns to its attention in November 2021. Whilst the landlord was in regular communication with its fire safety consultants, it provided the resident an unrealistic timeframe of when he could expect the EWS1. It provided him with the form approximately 5 months later, but has failed to communicate when he can expect the revised version following remedial works which were completed in July 2023.
The Ombudsman had to intervene to prompt the landlord to respond to the resident’s complaint on several occasions. Whilst the complaint responses were comprehensive, the landlord missed an opportunity to discuss directly with the resident all that he was dissatisfied with. Furthermore, it did not consider its compensation policy and make an offer of compensation for the time and trouble the resident experienced in bringing his complaint.

Orders

The Ombudsman orders the landlord to apologise to the resident for the failures found in this report, within 4 weeks.
The Ombudsman orders the landlord to pay the resident a total of £450 in compensation, within 4 weeks. Compensation should be paid directly to the resident and not offset against any arrears. The compensation is comprised of:
1. £200 for the distress and inconvenience caused to the resident by the landlord’s handling of his fire safety concerns and EWS1 form.
2. £250 for the time and trouble caused to the resident by the landlord’s complaint handling.
The Ombudsman orders the landlord to provide the resident with its fire safety action plan, to include when he will receive the updated EWS1. A copy of the plan to be shared with the Ombudsman, within 4 weeks.
Within 6 weeks of the date of this report, the landlord should review its communication plan for all residents affected by the EWS1 form, using the Ombudsman’s Spotlight on ‘Dealing with cladding complaints’. In doing so, it should give consideration to updating its website and signposting residents to supporting information.