A2Dominion Housing Group Limited (202001158)

REPORT

COMPLAINT 202001158

A2Dominion Housing Group

26 February 2020

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 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 response to the resident’s request for information about the cladding on the building she owns a property in, in order to progress the sale of the property
the handling of a safeguarding referral

Background and summary of events

Background

The resident holds a shared-ownership lease of the property which the complaint concerns. The property is a one-bedroom flat situated on the third floor of a purpose-built building with four floors. The freehold of the building is owned by the landlord.
The Government initiated its Building Safety Programme after the fire at Grenfell Tower. Advice Note 14 was issued in December 2018 as part of the Building Safety Programme. It was for owners of high-rise residential buildings (18m or above) where the external wall system of the building did not incorporate aluminium composite material (ACM). The advice sets out checks which owners can carry out to satisfy themselves, and their residents, that their building is safe. The process to obtain certification can be complicated and require input from experts, which there is currently a shortage of within the industry.
Government guidance on building safety was consolidated in ‘Building Safety Advice for Building Owners’, issued in January 2020. This confirms that the guidance applies to all multi-occupied residential buildings under 18 metres. 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”.
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, The Building Societies Association, and UK Finance agreed a new industry-wide valuation process to help people buy and sell homes and re-mortgage in buildings above 18m (six storeys). Form EWS1 was introduced to prove to lenders that external cladding had been assessed by an expert.

Summary of events – cladding

During August 2019 the resident started the process for selling the property. During December 2019 the resident moved out of the property to rented accommodation after giving birth to her second child, as the property was too small to accommodate her family. The resident says that at this point she expected the sale of the property to complete within the next couple of months.
On 12 December 2019 the buyer contacted the landlord as their lender had said they needed a written statement from the building owner confirming that the cladding system met the requirements of the Government guidance.
On 18 December 2019 the resident contacted the landlord. She said she needed assistance with the query from the buyer about the cladding. She said as far as she was aware there was no cladding aside from timber on the 3rd floor of the building, and she needed the landlord to confirm this as a matter of urgency in order to progress the sale.
On 20 December 2019 the landlord told the resident that it had enquired with its cladding and fire safety team who had advised that there were unlikely to be any updates until the new year. It said this was due to the magnitude of how many cladding surveys it was working its way through on the buildings it owned that were above the 18m Government requirement. It said it would provide further updates when they became available.
On 7 January 2020 the landlord told the resident that it was unlikely to receive any further updates until the end of the month. Following this the resident asked the landlord to confirm the timeframe for carrying out the inspection and what the process would be ie whether a report was already available or whether this would be compiled after an inspection. The resident followed this up on 24 January stating she had received no response to her queries and needed an update. The landlord’s records show that the resident also called the landlord on at least two occasions following this chasing it for a response.
The landlord states that it subsequently spoke to the resident on 5 February 2020 and agreed to provide a written statement confirming why it was unable to provide the documents the lender was requesting. However, the landlord noted that it was unable to continue with this as the resident’s partner had contacted a large number of staff through social media and so the matter was dealt with as a formal complaint.
On 7 February 2020 the resident’s partner submitted a formal complaint to the landlord. In relation to the matters that are being considered by this investigation, he said that:

a. In mid-December the buyer’s surveyor had requested a report about the cladding but the landlord did not know when it would be able to undertake the survey. This may mean it was not possible to sell the property at all.

b. The landlord knew in August 2019 at the start of the selling process that this might be a problem and at no point had it informed him/the resident of the potential problem or how to deal with it.

c. He/the resident had incurred significant costs as they had been paying for two properties.

On 10 February 2020 the resident told the landlord that the buyer had contacted her concerned that the updated Government guidelines issued in January 2020 applied to the building. She asked the landlord to provide any news it had on the matter. In response the landlord confirmed that it was in contact with its fire engineers to find out whether surveys were required or if it could provide a statement with supporting information from the fire risk assessment. It said it would provide an update by the end of the week.
On 24 February 2020 the landlord provided a stage one response. In this it said that:

When the buyer requested the building compliance form (EWS1) in December 2019, this was a new initiative that lenders had only just put into place. It could not have known about this when the resident first decided she wanted to sell.
Government guidance on fire safety had been changing continuously over the previous two years and up until January 2020 this applied to tall buildings above 18m high. New advice issued in January 2020 applied to all multi-storey residential buildings. It was reviewing the revised guidance but did not currently have a programme of full investigative surveys in place for buildings below 18m.
At the time of the original query about cladding, it could have been clearer and affirmed that the building was not subject to the Government guidance as it was below 18m. This meant it was not required to provide an EWS1 form.
The EWS1 form could only be provided by approved fire consultants after they had carried out an appropriate level of investigative surveys. This was a long process and there was a limited pool of experts to carry out the surveys. It had nonetheless requested its surveying consultants to carry out a stage 1 (observational) inspection of the building to give an indication as to the potential fire risk posed by the wall system and whether further intrusive inspections needed to be carried out.
It was very sorry for its communication delays and appreciated the resident’s frustration as external factors had so far prevented the sale of the property. It would like to offer £120 compensation for the communication issues.
It did not usually allow subletting of shared ownership properties but due to the exceptional circumstances it would be willing to discuss the possibility of this. If the resident would like to discuss this then it would arrange for a specialist to contact her.

The resident subsequently told the landlord that its response was not acceptable. She said she was seeking the following:

a definite timescale by which the cladding issue would be resolved
her rent payments waived
adequate compensation

On 26 February 2020 the landlord confirmed that its consultant had completed the observational inspection and it expected to receive the findings by the end of the week.
The resident’s partner subsequently escalated the complaint and the landlord confirmed that it would provide a full response by 23 March 2020.
At the beginning of March 2020 the resident met the surveyor at the property to allow them access to take a closer look at the cladding. The resident says the surveyor confirmed that further investigations were required and they would speak to the landlord to get this booked in within a week. The resident says the landlord did not tell her until the end of April that it would not be carrying the further inspections out.
On 12 March 2020 the landlord informed the resident that:

It had received confirmation that there was no ACM in the cladding, although the feature timber and metal panels may be combustible. It was not yet in a position to confirm when it could carry out further inspections and provide confirmation of compliance.
The building was 8.6m high and until January 2020 Government guidance applied to buildings 18m and higher. Its inspection programme was currently focusing on its tall buildings. It was reviewing the new guidance issued in January 2020 to see how it could ensure its future plans aligned with it.
It reiterated its suggestion for the buyer’s lender to refer to the fire risk assessment which it had attached. The overall assessment of fire risk had been described as moderate.

The resident says she received the fire risk assessment however this was not for the correct building, was dated from 2018 and did not refer to the cladding. The resident has provided evidence to confirm that the buyer’s lender advised on receipt of the fire risk assessment that it would not, in any case, be accepted in lieu of a written statement from a suitably qualified independent advisor.
On 25 March 2020 the resident chased the landlord for the stage two response. The landlord subsequently provided its stage two response on 2 April 2020. In this it said that:

It accepted this had been a difficult situation and it empathised with the resident’s position. It was sorry it was unable to provide information about the cladding as quickly as the resident needed.
Last year it had made a budget provision for a three-year programme to survey all buildings above 18m in height to ensure they complied with safety standards. It had more information available about this on its website, including how it might affect leaseholders looking to sell.
In this case it seemed that the mortgage lender had extended their compliance requirement to buildings under 18m. As the building was below 18m it was not part of the programme for inspection surveys. However, its consultant surveyor was visiting the building on a different matter and it gave instruction for an observational survey to be carried out at the same time.
Unfortunately the survey determined that further, more intrusive investigations were required. Its building projects team provided the most recent update on 13 March 2020 with a copy of the surveyor’s report.
It was prioritising its investigations and repairs according to risk. The building was around 8.7m in height, predominately constructed of brickwork and this meant it was not an urgent priority. It was presently unable to confirm dates for inspections as its consultants and engineers had paused the programme of work because of the Coronavirus lockdown. It would update the resident when it resumed the programme.
Although the lender had requested EWS1 compliance documentation, this was only designed for buildings above 18m. For buildings below 18m in height it provided copies of the fire risk assessment. If the resident did not already have this she could request it from the building projects team.
It wanted to do whatever it could to assist and this was why it suggested the resident considered subletting. Its policy usually only allowed this in exceptional circumstances. It appreciated the additional financial burden renting a second property would have created and its tenancy sustainment team may be able to assist the resident if she so wished.
There had been delays in communication and this had been raised with the relevant service areas who would be making every effort to streamline service delivery. It sincerely apologised for this and would like to increase the compensation offer to £180 for the communication issues the resident had experienced due to the delays in issuing the final response.

The resident raised further queries after receiving the stage two response. She asked the landlord to explain why it could not arrange the intrusive inspection given that the surveyor had advised her this could be booked in within a week. She asked the landlord to clarify whether she could instruct a survey herself and to confirm the timescale for providing confirmation of compliance. She also asked the landlord to provide details of its subletting policy and said she was not interested if this meant the landlord renting the property out at a subsidised rent.
The landlord provided a supplementary stage two response about the cladding issue on 20 April 2020. In this it said that:

Intrusive surveys could only be authorised by the landlord because they required intrusive access and works to the structure and exterior.
In general its fire safety inspectors required surveyors to make multiple intrusive inspections of the walls and construction in a variety of different locations before being prepared to authorise and sign off on them. This usually required the building to be scaffolded. The survey findings would most likely show the need for some remedial works.
It could not at the moment guarantee the date for undertaking this type of work owing to the scale of the programme already identified which was focused on buildings 18m and higher. The intrusive survey programme was currently suspended due to the Coronavirus pandemic.
It had provided an extract from its subletting procedure. As a gesture of goodwill it would waive the initial fees it would usually charge.

Summary of events – safeguarding

On 15 February and 19 February 2020 the landlord received emails from the resident’s partner in which he referred to self-harming and the effects his mental state were having on the resident and their children.
On 21 February 2020 the landlord emailed children’s social services raising a referral for the resident’s children due to welfare concerns. The landlord followed this up on 24 February with a phone call to social services. The landlord’s records state that social services advised they could not be sure if the children were living at the address provided and advised the landlord to contact the police and request a welfare check.
The landlord contacted the police on 24 February 2020. Its records state that it shared all relevant information and the police confirmed that police officers and an ambulance would aim to attend the property for a welfare check within the next hour.
Following this the police attended the property and forced entry by breaking down the front door. The resident says she discovered this when she returned to the property shortly afterwards. She also says that she was contacted by social services to discuss the referral made by the landlord. She says the landlord failed to inform her that the referrals had been made or that the police had attended the property.
On 17 April 2020 the landlord provided a stage two response to the resident. In this it said that:

It was responding at stage two as the resident’s partner had made a number of allegations about staff and the landlord organising a campaign of harassment against him. The most serious allegation made was that the landlord had involved other agencies culminating in the front door to the property being broken down by the police.
It had received emails from the resident’s partner in February, the content of which it had serious concerns about. Therefore, its Safeguarding Officer had shared welfare concerns with social services and the police. The police agreed to carry out a welfare check and attended the property but no one appeared to be home. Social services made a referral to the local authority that the resident had moved to. It understood that social services subsequently closed the case as a level 2 information sharing.
The safeguarding team acted appropriately and in line with its policies given the worrying and deeply disturbing nature of the emails it had received from the resident’s partner. There was no evidence to support the assertions that it had orchestrated a campaign of harassment against the resident’s partner.
The complaint had exhausted its complaints procedure and could be referred to the Ombudsman.

Following this the landlord advised the resident that it continued to have concerns about the accusations that were being made against its staff and it would apply for a cease and desist order if necessary. Regrettably, at the time of referring the complaint to the Ombudsman it is clear the relationship between the parties had broken down. The resident/her partner feel very strongly that they have been harassed by the landlord, both in the way it has responded to the cladding issue and in its handling of the safeguarding referral, and the landlord has concerns about the accusations that have been made against staff and the manner in which they have been pursued.

Assessment and findings

Cladding

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 with it. The Ombudsman’s guidance further sets out that when investigating a complaint relating to fire safety and cladding the Ombudsman will consider the following points:

What are the landlord’s long-term plans for compliance with the guidance and are these fair and reasonable?
How has it communicated with residents regarding the situation and was this communication appropriate?
How has it responded to the individual circumstances of the resident?

At the time the resident started the process for selling the property, Advice Note 14 did not apply to the building as it only applied to buildings 18m or higher. Therefore, it was reasonable for the landlord to explain that it could not have known the buyer’s lender would request confirmation of compliance with the Government guidance at the time the sales process started.
The Government guidance was revised in January 2020 and since then it has applied to the building. This means that the landlord is expected to carry out checks to ensure that the cladding system is safe and to carry out any necessary remedial works. As the Government’s expectations in relation to cladding and fire safety are only detailed in guidance, there is an element of discretion for the landlord as to how and when it chooses to comply with it.
The landlord carried out an observational inspection of the cladding system in February 2020. This confirmed that further intrusive investigations would be required before confirmation of compliance could be provided. The landlord has explained that due to the scale of its building safety programme and nature of the inspections and remedial works required, it is prioritising its buildings based on risk. The building’s height and construction mean that it is not an urgent priority.
The Ombudsman recognises that the process to achieve compliance with the Government guidance is complicated and requires input from experts, which there is currently a shortage of within the industry. Given this and the number of buildings owned by the landlord that require assessment (400 under 18m), the Ombudsman is satisfied that the landlord’s approach to prioritising the inspections is rational. Therefore, it was reasonable for the landlord to confirm that it would not be arranging further inspections of the building immediately.
In its final complaint response the landlord clarified that it was unable to confirm likely dates for further inspections due to the Coronavirus pandemic, which had meant it had suspended its building safety programme. Given the restrictions in place at that time, it was reasonable for the landlord to advise that it could not give any further information regarding the likely timescales involved. Information submitted to the Ombudsman indicates that the building will be included in the latest round of inspections and it is therefore recommended that the landlord provides an update to the resident in this regard, if it has not done so recently.
Whilst the landlord’s approach to complying with the Government guidance was reasonable, there were shortcomings in its communication about the matter. As the landlord has acknowledged, it failed to clarify that the Government guidance did not apply at the time of the resident’s initial enquiries in December 2019. It then failed to respond to some of the resident’s enquiries following this. It also failed to provide an adequate response setting out its position on the matter until it responded to the formal complaint, more than two months after the resident’s initial enquiry about the matter. Given the circumstances, this was unsatisfactory and would have increased the resident’s anxiety and frustration.
The landlord has however gone some way to acknowledging that there were shortcomings in its communication with the resident, and has apologised and offered £180 compensation for this service failure. The Ombudsman is satisfied that the landlord’s offer is reasonable and proportionate in the circumstances and adequately resolves this aspect of the complaint.
At the time of referring her complaint to the Ombudsman, the resident explained that she had already incurred over £5,000 in costs due to the property sale not progressing and in meeting the rent, service charge and mortgage payments on the property. She has told the Ombudsman that as a resolution to her complaint she requires the landlord to complete the cladding inspection, and if it is not able to do this in a timely manner then it either manages the subletting of the property or buys her share of the property back.
It is acknowledged that the resident needed to move out of the property to larger accommodation and did so expecting the property sale to complete within a matter of months. As a result the resident has incurred significant additional costs which she could not have anticipated. It is not doubted that the situation has caused the resident and her partner considerable distress, worry and frustration, as well as financial hardship.
However, in the Ombudsman’s opinion it was reasonable for the landlord to decline to compensate the resident for the costs she has incurred. This is because the landlord has explained why it was unable to provide confirmation of compliance at the time this was requested and has explained the steps it was taking to comply with the Government guidance. In addition, the property sale was unable to progress due to the decision of the buyer’s lender to link its lending decisions to the Government advice notes. This is of significance as the lender’s decision in this regard was beyond the landlord’s own control.
The landlord has taken reasonable steps to assist the resident by confirming that the resident is able to sublet the property (which is only allowed in exceptional circumstances) and in waiving the fees involved. Whilst the Ombudsman recognises that this does not provide an immediate solution to progressing the property sale, it does enable the resident to cover some of the additional costs she is incurring. It is therefore recommended that the resident gives this matter further consideration.
The landlord would be under no obligation to manage the sub-tenancy as the resident has requested. The Ombudsman also notes that this would require the resident and landlord to come to an agreement in this regard, which may cause difficulties given that the relationship between the parties has broken down. However, it is recommended that the landlord considers this request and confirms its position on this matter to the resident.
The resident has also requested that the landlord considers buying the property back. Whilst the Ombudsman acknowledges that the landlord is under no obligation to do this, it is recommended that the landlord considers whether this is something it is able to offer should it not be in a position to provide confirmation of compliance in the foreseeable future, particularly if remediation works prove necessary.
The Ombudsman acknowledges the difficult situation the resident is in with regards to progressing the property sale and that this is through no fault of her own. The Ombudsman therefore welcomes the recent consultation by the Royal Institute of Chartered Surveyors on its draft guidance note on the valuation of properties in residential buildings with cladding. The draft guidance recommends that EWS1 forms are not required where there is no ACM or metal composite cladding on buildings of four storeys or less. The proposed guidance note is due in Spring 2021 and may help resolve the problems prospective buyers have experienced in obtaining mortgages on the property.

Safeguarding

The landlord’s children safeguarding policy and procedure confirms that:

a. Staff will report concerns they have about a child immediately, or as soon as reasonably possible and within 24 hours, to their line manager and the landlord’s safeguarding team. Discussion must then take place to clarify the cause for concern and to decide whether there are sufficient grounds to refer the matter to social services.

b. Where there are concerns of immediate or significant harm, the matter will be referred to social services. This should be done immediately, or as soon as reasonably possible and within 24 hours, after the landlord’s internal discussion. This may necessitate informing the police. If a referral is made, parents will be informed unless it is in the interest of the child not to do so.

c. The health and welfare of the child is the paramount consideration.

The Ombudsman has seen the emails from the resident’s partner which triggered the referrals to social services and the police. The Ombudsman is of the view that the comments contained within these emails were cause for considerable concern and required follow up action by the landlord to ensure the safety and wellbeing of the resident’s family.
The landlord’s initial referral was to children’s social services and was a formal safeguarding referral. The landlord did not inform the resident/her partner of the referral and has told the Ombudsman that it had to consider whether further harm might be caused to the people it was trying to protect had it done so. It is understandable that the contact from social services caused the resident alarm and worry, particularly as she was unaware that a referral had been made.
However, in the Ombudsman’s opinion it was reasonable for the landlord to decide not to inform the resident/her partner of the referral. In reaching this decision consideration has been given to the nature of the comments made by the resident’s partner and the provisions of the safeguarding policy which confirm that the interest of the child is the paramount consideration.
On the advice of social services the landlord contacted the police and requested a welfare check. The landlord would generally be expected to act on any advice it receives from social services in relation to its residents and therefore there are no grounds to criticise the landlord’s decision to contact the police. There is also nothing to suggest that the landlord was required to inform the resident that it had asked the police to carry out a welfare check and its decision not to do so was reasonable in the circumstances.
The resident says that the landlord failed to inform the police that she had moved out of the property and has raised concerns that this led to the police breaking down the front door to the property unnecessarily. The landlord has confirmed that it does not have a recording of the phone call it made to the police and has provided a copy of its written record of the call. The written record does not confirm what exactly the landlord told the police about where the family was residing.
The landlord has told the Ombudsman that the police were provided with the last known address that it had and were made aware that the family had moved out of the property. It says the police took the decision that the resident’s partner may still be at the property and it was their decision to break into the property. The Ombudsman acknowledges the resident’s concerns about this matter and understands that arriving back at the property to find the front door broken down would have caused her considerable distress. However, the Ombudsman can only base decisions on evidence and it is not possible to conclude from the available evidence in this case that the landlord failed to give accurate information to the police about where the family was residing.
The resident has raised concerns that the landlord delayed in making the safeguarding referral and has therefore questioned how concerned the landlord was about the situation. The emails that prompted the referral were received on 15 February and 19 February, and the initial referral to social services was made on 21 February 2020. Given the timescales outlined in the landlord’s safeguarding procedure, it is reasonable to conclude that the referral could have been made sooner. However, there is nothing to suggest that this had a detrimental effect on the resident or her family, or that the landlord did not have genuine concerns for the family’s safety.
The resident has also raised concerns about how long it took the landlord to replace the front door which had been broken down by the police. She has said that she could not have sublet the property whilst she was waiting for the door replacement. The Ombudsman is only permitted to consider matters that have first been raised with a landlord as a formal complaint and taken through the complaints process. As the door repair was not a matter considered under the landlord’s complaints procedure, the Ombudsman is unable to make a finding on this matter. However, it is recommended that the landlord reviews how it handled this repair and if it identifies any delays, offers compensation to the resident in line with its compensation policy.

Determination (decision)

55.In accordance with paragraph 55(b) of the Housing Ombudsman Scheme the landlord has made redress to the resident which, in the Ombudsman’s opinion, resolves the complaint about the request for information about the cladding satisfactorily.

56.In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in relation to its handling of the safeguarding referral.

Reasons

It is acknowledged that the resident’s situation is difficult and that she is in this position through no fault of her own. This is because until the landlord is able to provide confirmation of compliance in line with the Government’s guidance, the resident is effectively in limbo as she is unable to sell the property as lenders will not lend on it because of the potential cladding issue.
The Ombudsman is satisfied that the landlord is taking appropriate steps in response to the Government’s guidance, as it has committed to inspecting the building and providing confirmation of compliance. The Ombudsman is also satisfied that the landlord’s approach to prioritising the inspections is rational and that it has adequately explained why it will not be arranging the intrusive inspections immediately.
Whilst the landlord’s approach to complying with the Government guidance was reasonable, there were shortcomings in its communication about the matter and it failed to provide an adequate response until over two months after the resident’s initial enquiry. Given the circumstances, this was unsatisfactory and would have increased the resident’s anxiety and frustration. The landlord has however gone some way to acknowledging these shortcomings, apologised and offered a reasonable amount of compensation for this service failure.
It was reasonable for the landlord to decline to compensate the resident for the costs she has incurred. This is because the landlord has explained why it was unable to provide confirmation of compliance at the time this was requested and the steps it was taking to comply with the Government guidance. In addition, the lender’s decision not to lend on the property was beyond the landlord’s own control.
The landlord has taken reasonable steps to assist the resident by confirming that the resident is able to sublet the property (which is only allowed in exceptional circumstances) and in waiving the fees involved.
The Ombudsman acknowledges the resident’s concerns about the safeguarding referral and the resulting distress this, and the forced entry by the police, caused her. However, the referrals to social services and the police were reasonable in the circumstances. It was also reasonable for the landlord to decide not to inform the resident of the referrals given the nature of the comments that prompted the referrals and the provisions of the safeguarding policy.

Recommendations

It is recommended that the landlord does the following within the next four weeks:

a. re-offers its compensation award of £180 to the resident if this has not already been paid

b. provides an update to the resident on the likely timescale for obtaining confirmation of compliance and thereafter provides an update on a quarterly basis until this is obtained

c. considers whether there are any other actions it can take to assist the resident. The Ombudsman strongly recommends that this should include consideration of its position on buying the property back given the breakdown in the landlord-tenant relationship, particularly if it is not in a position to provide confirmation of compliance in the near future. The landlord should provide confirmation of the outcome in writing to the resident and to the Ombudsman

d. considers the resident’s request that it manage the sub-tenancy should she sublet the property and confirms its position on this matter to the resident in writing

e. reviews how it handled the repair to the front door and if it identifies any delays, offers compensation to the resident in line with its compensation policy