Clarion Housing Association Limited (202102330)
REPORT
COMPLAINT 202102330
Clarion Housing Association Limited
2 February 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:
a. The landlord’s response to the resident’s concerns about his building’s
External Wall System (EWS1) certificate rating.
b. Its response to the resident’s enquiries about the remedial work required for
the building to meet adequate safety standards and the timeframe within
which this is expected to be achieved.
c. The landlord’s response to the resident’s enquiries about whether the
expected costs of remedial works will be passed onto residents.
Background and summary of events
Background
2. In January 2020, the government’s Ministry of Housing, Communities and Local Government (MHCLG) issued revised guidance on building safety standards for flats within apartment blocks – “Advice for Building Owners of Multi-storey, Multi–occupied Residential Buildings”. As a result, buildings of any height were potentially in scope for requiring an external wall fire review and completion of an EWS1 (external wall system) form devised by the Royal Institution of Chartered Surveyors (RICS).
3. EWS1 certification required a new assessment of the building by a qualified, independent professional to establish if the external wall system met new fire risk standards, or whether remedial work was needed.
4. The landlord’s Fire Safety Policy states that the aims and objectives of Clarion is to maintain a safe environment and reduce the risk of fire to tolerable levels through various ways including “to reduce the risk of fire to as low as reasonably practicable, for the safety of all residents, staff, contractors and visitors”.
Summary of Events
5. The resident is a shared-ownership leaseholder of the landlord, and his property is a flat in a new-build low rise block, below 18 metres. The development comprises two detached buildings, one with two blocks and the other with three, none over 18 metres.
6. The landlord commissioned consultants to undertake an external façade review and production of an EWS1 form. The consultants visited on 16 September 2020 and on 12 November 2020 it produced the report. The report noted:
a. The aim of the report was to provide a holistic fire safety review of the property, in line with the government guidance of January 2020. Its overall view was that the external wall systems that were present had a detrimental impact on the overall fire safety of the building and did not comply with the government advice.
b. The external façade consisted of brickwork, high pressure laminate (HPL) cladding and steel balconies. The HPL cladding to sections extended the height of the property; behind the HPL is a Celotex insulation, which along with the HPL is combustible. This presented an unacceptable risk of external fire spread. Remedial action was required to remove and replace the HPL system with materials achieving Euroclass A2 or better.
c. Its current RICS EWS1 form rating was B2 meaning that an adequate standard of safety was not achieved, and remedial and interim measures were required. Option B was for buildings where combustible materials were present in the external walls.
7. It is understood that during February 2021 the resident made enquiries about selling his property. As he was not happy that the landlord did not confirm how and when the sale could proceed, he approached his councillor for assistance.
8. On 11 February 2021 the landlord wrote to the resident advising of the consultant’s findings of 12 November 2020. It advised that it was reviewing all its buildings that required similar assessments as well as other buildings where it was aware that works were needed, starting with those that were considered high-risk first.
9. On 18 March 2021 the councillor wrote to the landlord on behalf of the resident.
He noted that the resident had received the EWS1 form and asked the landlord to
confirm what a B2 rating meant, whether there was a programme of works for the
building and how much would it cost. He noted that the resident needed to move
for family reasons and therefore for the works to take place before they could
safely sell their property.
10. On 26 April 2021 the landlord wrote to the councillor outlining the outcome of the
EWS1 report of 12 November 2020 and stating that it was required to prioritise
remedial works to its higher risk buildings first, and therefore was unable at that
time to provide a timeframe for works at the resident’s property. With regards to
whether it would pass on costs to shared-owners and leaseholders, it noted that
only buildings over 18m tall were eligible for the Government’s Building Safety
Fund, and it was likely that the terms of the lease would apply. In response, on
26 April 2021 the councillor advised that several residents on the estate were
unhappy that there were no timescales for “remediation” and no advice on the
estimated costs to leaseholders. He stated he would like to escalate each case
to Stage 2 of the Complaints Procedure as it was not right for residents to be just
left waiting.
11. On 19 May 2021 the resident emailed that landlord with queries about the EWS1
assessment for his block, the timeframe provided to carry out all the EWS1
surveys and the provision of remedial works as a result of the assessment for his
block.
12. The landlord registered a formal Stage 1 complaint due to the recent contact from the councillor, this Service and the resident on 19 May 2021, and on 21 May
2021 sent the Stage 1 response. It stated:
a. Without the new EWS1 form, lenders may decline to offer a mortgage or re–mortgage on a property. The provision of a EWS1 form was not a mandatory
requirement. However, it had instructed EWS1 surveys when requested, when they met the criteria stipulated by RICS, to support homeowners to sell their homes or re-mortgage.
b. The EWS1 was instructed on the resident’s estate, as one of the residents
had requested the form for this purpose.
c. It was currently completing a national survey of its stock, which would be
completed by the end of this year. Following the completion, a programme of
further investigation and remediation work would be developed, with the
buildings posing the highest risk being prioritised. At that stage, it was not yet
in a position to provide details outlining the nature and extent of the works
which may be required, or an exact date for when identified works may be
completed at the resident’s block.
d. It recognised this matter would be of concern to those living at the resident’s development and wished to assure residents that it remained committed to ensuring that any remedial works or upgrades to meet current fire safety standards were delivered as soon as possible. In addition, it would explore all avenues available to minimise the level of any costs that may be recharged to leaseholders; however, it was unable to provide specific details of this at this very early stage.
13. On 21 May 2021 the landlord also wrote to the councillor notifying him of the
outcome of the EWS1 assessment for 12 November 2020 and reiterating the
advice that it provided in the Stage 1 response to the resident.
14. On 21 May 2021 the councillor, copying in the resident, advised the landlord that
he remained dissatisfied that the landlord did not provide specific information or
timescales for the surveys to be completed and the resulting remedial works and
costs. In a further email sent on 22 May 2021, the councillor reiterated his view
that it was unacceptable that residents would have to wait until December for
answers on remediation works. He also queried how long thereafter it would take
to form a programme of works after the survey.
15. On 1 June 2021 the resident emailed the landlord noting:
a. He (and other residents) had approached the councillor as his “numerous”
emails and phone calls were ignored and not responded to within the
timeframe provided.
b. He had initially called in February 2021 for advice on how to sell his property. The Sales Team’s number did not work so he had to call the Customer
Service team who advised someone would respond in due course. After
receiving no response, he followed the sales advice on the website and paid
for a RICS survey costing £300. However, after sending the landlord the
relevant forms, he was told the EWS1 form was not “up to scratch”. The
landlord also would not tell him why a neighbouring property was up for sale.
c. In response to a further email he sent on 19 February 2021, the landlord
advised him that it was unable to market his property until it had completed
outstanding works to the cladding on his block. It hoped the works would be
completed “swiftly”. The resident stated the email correspondence raised his
expectations at that time that the works would be completed. The resident
also noted that he had asked whether he would be compensated the £300 he
paid for his survey.
16. The landlord on 23 June 2021 advised that it would escalate the complaint.
17. On 26 July 2021 the landlord sent the Stage 2 response. It reiterated the Stage 1
response and added:
a. Its consultant had undertaken the initial assessment of the resident’s
development that was being used to form the priority for future intrusive
inspections. This programme of initial assessments was not yet concluded
and was expected to continue for another 3-4 months before all blocks had
been reviewed. However, based on the feedback from the consultant, it was
likely that the block would be classified as a higher priority for the pending
intrusive inspections. It was unable at that stage to confirm when the intrusive
survey would be undertaken but would update residents as soon as it was
able to.
b. Following the intrusive inspections, a programme for remediation work would be developed. Again, it was unable to confirm at that stage the extent of any works or an exact date for when these would be completed. It would continue to liaise with the residents to update them on any progress when it was in a position to do so.
c. In recognition of the delay in responding to the resident’s complaint within the published service level agreement, it would award of £25 compensation.
The landlord’s internal correspondence indicates that the Stage 2 response
was sent to other residents who had also complained.
18. The landlord informed this Service on 18 November 2021 when providing
information for this investigation that:
a. Once it had completed its national review of all its buildings, which should be by the end of the year, it would be developing a programme of further
inspections and/or remedial works to the buildings that needed it. It
anticipated being able to provide a timeframe of actions by spring 2022. It
would contact residents at the development once it knew when it would be
able to look into the buildings further.
b. It could not confirm at that time whether the lease allowed it to recharge
residents if it decided to do so. Such a decision would also be dependent on
any funding that may or may not be available.
19. On 10 January 2022, the government withdrew the guidance of January 2020. It
announced: “No leaseholder living in a building above 11 metres will ever face
any costs for fixing dangerous cladding and, working with Members of both
Houses, we will pursue statutory protection for leaseholders and nothing will be
off the table”. For leaseholders living in buildings below 11 metres, each building
will be assessed on a ‘case by case basis’”.
20. On 8 March 2022 the landlord advised the resident that as part of the review of
the external wall system of its properties, it had commissioned a specialist fire
engineer consultant which would be carrying out an intrusive inspection to the
building between 14 and 18 March 2022.
21. The specialist consultant found that:
a. There was a moderate risk of fire. Accordingly, remedial measures were
required and Option B2 of Form EWS1 would apply to the building at that time
because if any remedial measures at all were required, regardless of scale,
then Option B2 must be selected.
b. Although the materials used in the external walls were not in themselves a
concern, there were extensive issues with the standard of installation of cavity
barriers. Therefore, in its opinion, it could not be ensured that there was a
reasonable standard of health and safety for those in and around the blocks.
Remedial measures would therefore be required to reduce the fire risk to a
tolerable level.
22. On 14 April 2022 the landlord wrote to the resident advising that whilst the fire
engineer had found that the cladding was of limited combustibility, there was a
defect with the construct of the external wall system that meant the EWS1
continued to have a B2 rating. This would require remediation to bring the
building in line with current fire safety guidance. The landlord further advised that
it would be meeting with the developer to decide the next steps.
23. On 22 April 2022 the resident asked the landlord, copying the email to the
councillor, to provide the EWS1 form in full from the recent fire safety inspection.
On 6 May 2022 the landlord wrote to the councillor providing the EWS1 form. It
reiterated that there was a potential issue with the provision of cavity barriers in
the construction of the external wall system that was likely to require remediation
and that it would be meeting with the developer. The landlord reiterated this
advice in a letter sent to the resident dated 24 May 2022.
24. On 25 July 2022 the landlord advised the resident that the developer wished to
undertake some sample inspections itself on 3 and 4 August 2022.
25. The landlord has since advised this Service that the developer had indicated a
desire to remediate the issues identified by the consultant. It had met the
developer on site to discuss its proposals, and then arranged for it to have
access to the building to undertake its own intrusive inspection. It was now
waiting for a formal proposal in writing, after which it will advise residents. The
landlord has further confirmed its intention regarding the funding of the works.
26. The resident has advised this Service that the cavity wall barrier issue was not
raised in the EWS1 form of November 2020 and that he believes the landlord
should not prevent him from selling his property pending works to the cavity wall
barrier.
Assessment and findings
27. Under the Housing Act 1996 where this Service investigates a complaint, it must
determine it by reference to what is, in the Ombudsman’s opinion, fair in all the
circumstances. In investigating this complaint, we have considered the
Ombudsman’s spotlight report on “Dealing with Cladding Complaints” (May
2021), and the landlord is reminded to refer to the report. Whilst there has been
changes in government guidance since the report, the report identified three key
lessons which still are applicable as the issues with cladding remain and because
many residents consequently are still in a position of uncertainty about their
housing options and financial liabilities.
a. What are the landlord’s long-term plans for compliance with the guidance, and are these fair and reasonable? The Ombudsman believes it is essential for landlords to provide a clear road map – with timescales – to all residents. The longer the gap between setting out long-term plans and any progress the less likely it is that this will be considered fair and reasonable.
b. How has the landlord communicated with shared owners/leaseholders
regarding the situation, and was this communication appropriate? Effective
communication is vital, and landlords need to assure themselves that their
strategy for this is robust, well-resourced and proactive given the evolving
situation and changing circumstances. The risk otherwise is increased
frustration and deterioration of the resident and landlord relationship.
c. How has the landlord responded to the individual circumstances of the
resident? Has the landlord considered the impact of the situation on the
particular circumstances for the resident? The Ombudsman expects a
landlord to show empathy for residents trapped in these circumstances and to
mitigate the impact where possible. Landlords should always address the
individual circumstances presented in a complaint and, where appropriate,
exercise discretion as they would with other complaints. The longer this crisis
continues the greater the impact will be on individuals’ life chances, their
finances, mental health and well-being.
The landlord’s response to the resident’s concerns about his building’s External Wall
System (EWS1) certificate rating
28. The landlord’s first consultants produced the EWS1 form after it inspected the
external walls at the development in September 2020. The resident enquired
about selling his property from February 2021; however, the landlord was to take
action at the resident’s block based on the findings in the EWS1. Furthermore,
the landlord needed to make a decision on the cost implication for the resident.
Therefore, he could not proceed with the sale.
29. The EWSI form had a B2 rating which at the time required it to carry out remedial
works. Given the landlord’s legal and policy obligations to reduce the risk of fire
as low as possible and ensure that the building was in line with fire safety
guidance, it was appropriate that the landlord decided it would make further
investigations at the resident’s development and then carry out remedial works.
30. However, the landlord had a wider responsibility to review the fire risk and safety
of buildings across its whole housing stock. Given this wider responsibility and
the need to prioritise its resources, it was reasonable that the landlord decided to
complete the review of all its buildings before carrying out further investigations
and works at the resident’s development.
31. The landlord carried out an intrusive survey in March 2022, over a year after its
initial inspections. It is acknowledged that there has been a delay in the further
inspection which has caused delay and frustration to the resident in particular
because he has been unable to sell his property. However, it is also recognised
that the landlord is a relatively large social landlord and that it adopted a riskbased approach to prioritise investigations and remedial works. It is considered
that a risk-based approach to prioritising buildings for inspection considering
height, occupancy and known building materials to be a rational approach to
responding to government guidance. As such it cannot be concluded that the
delay is indicative of service failure by the landlord.
32. The further inspection found a new issue with the cavity wall barriers. Although
not a cladding issue, the cavity barrier installation has caused the B2 rating to
remain, therefore it is reasonable that the landlord is proceeding with carrying out
remedial works. It is consulting with the developer over the remedial works which
is reasonable given that the developer was responsible for the construction of the
building and is well placed to understand how the risks identified can be
remedied. Again, it is acknowledged that this process is adding to the delay;
however, again it is not indicative of service failure by the landlord.
The landlord’s response to the resident’s enquiries about the remedial work required
for the building to meet adequate safety standards and the timeframe within which
this is expected to be achieved
33. The landlord initially advised the resident in February 2021 that it was reviewing
the external walls of all its buildings that required such an assessment. Over the
next three months the resident and the councillor on his behalf understandably
asked the landlord to provide timescales for completing the surveys of its
buildings and for carrying out works at the resident’s building, culminating in the
landlord registering a formal complaint.
34. As noted above, it is important that landlords communicate effectively and
provide timescales for the action being taken to resolve cladding and fire safety
issues. In this case, it was not until the Stage 1 response of May 2021 that the
landlord indicated that building surveys were anticipated to be completed by the
end of the year, after which further investigations and works could be prioritised
and carried out. At the time this was a reasonable response as the landlord
confirmed the process that needed to be followed before works to the resident’s
building could be specified and arranged. It also confirmed when it would be able
to devise a programme of further investigations and remedial works – after the
end of the year when the surveys were completed.
35. The landlord confirmed in the Stage 2 response of July 2021 that it was likely that the initial assessment of all its blocks would not be completed until the
November/December of that year, and that a further, intrusive, inspection would
be required at the resident’s development so that remedial works could be
identified.
36. However, following the Stage 2 response, the landlord did not update the
resident, either directly or through the councillor, until March 2022 when it
confirmed the dates the intrusive inspection would take place. As noted, it had
indicated that the initial review of all its stock would be completed by or during
December 2021. It was therefore unreasonable that the landlord did not provide
an update to the resident at this time, for instance to confirm whether the
timeframes for action previously provided still held.
37. Aside from not confirming whether timeframes previously given were being met, it was unreasonable the landlord did not make contact with the resident sooner and
more regularly. The Ombudsman’s Spotlight Report states that “Landlords must
ensure that they are proactive in providing appropriate and timely updates on a
regular basis, at least once every three months even where there is little or no
change”. The landlord did not do this. Essentially, the landlord did not take
sufficient steps to assure the resident that it was taking the necessary action, as
promptly as possible, to bring his complaint to a final resolution.
38. Furthermore, the Spotlight Report states that landlords should show empathy for
the resident’s situation, mitigate the impact where possible and address the
individual circumstances of the complaint. In this case, the landlord was aware of
the resident’s frustration that the sale of his property was being put on hold
pending identification and completion of the remedial work, and therefore that he
felt trapped in his property. However, it failed to acknowledge the circumstances
of the resident’s case and the impact on him, including the resident’s claim for
reimbursement of a survey he paid for; in fact, the landlord’s responses and
updates were generic. The resident has further stated that he has made
suggestions to the landlord which have not been responded to, such as being
allowed to sell his property despite the cavity wall issue and the landlord buying
his property back.
39. As noted above it is reasonable that the landlord consults with the developer but
at present the landlord is awaiting a proposal from the developer. According to
the information provided to this Service by the parties, the landlord has not
indicated to the resident when it has requested or expects the developer’s
response and therefore when the completion of any identified works can
commence. Therefore, the resident’s uncertainty is continuing.
40. This Service notes that the landlord has recently advised that it will be providing a further update to residents by the end of September 2022, pending a written
proposal from the developer. To mitigate the resident’s uncertainty the
Ombudsman orders the landlord to provide an update with timescales for further
action by the end of September 2022 regardless of whether it has heard back
from the developer.
The landlord’s response to the resident’s enquiries about whether the expected costs of remedial works will be passed on to residents.
41. The landlord initially advised the resident and the councillor in April 2021 that as
there was no government funding for works to buildings under 18 metres, it was
likely that the resident would have to contribute to the cost of remedial works as
per the conditions of his lease. The landlord’s response at Stage 1 further
indicated that costs “may” be recharged to resident.
42. Whilst the landlord’s advice reflected its understanding that there was no external
funding of remedial works at that time, it did not say with certainty that the
resident would have to bear all or part of the cost. This in itself was not
unreasonable as the issue of the completion and funding of remedial works was
evolving and required ongoing review by the landlord. However, the landlord then
had a responsibility to update the resident and as noted above, every three
months is a reasonable period.
43. Thereafter there is no evidence that the landlord updated the resident about the
cost of remedial works and liability, which has prolonged his uncertainty. The
landlord’s advice to this Service of November 2021 indicates that it was still
undecided on whether to recharge leaseholders, and the availability of funding
would affect the decision. However, there is no evidence that this was
communicated to the resident.
44. It was also unreasonable that the landlord did not provide an update to the
resident after the government announcement of 10 January 2022. Although the update itself may not have been significant to the resident as their building stands below 11 metres in height; this does not negate the landlord’s responsibility to provide proactive, meaningful updates. Whilst the content of the announcement had not been passed into law, the government intended to ensure that leaseholders in buildings above 11 metres would not face costs for cladding. While this does not apply to the resident’s block, the landlord should have updated them and informed them of why the latest government guidance would not apply to them. As such it was unreasonable that the landlord did not contact the resident to acknowledge the change in government policy and the possible implications for him.
45. There is also no evidence that the landlord has provided clarification on whether
residents will be expected to pay for the works to the cavity barriers which are
separate to cladding works and therefore not covered by the government
announcement of 10 January 2022. This too has contributed to the resident’s
uncertainty about costs. The landlord has advised this Service in recent
correspondence that it has now made a decision on recharging residents, and it
is ordered that it communicates this position in the update to be provided by the
end of September 2022.
Determination (decision)
46. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there
was no maladministration by the landlord in respect of the landlord’s response to
the resident’s concerns about his building’s External Wall System (EWS1)
certificate rating.
47. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there
was maladministration by the landlord in respect of its response to the resident’s
enquiries about the remedial work required for the building to meet adequate
safety standards and the timeframe within which this is expected to be achieved.
48. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there
was maladministration by the landlord in respect of its response to the resident’s
enquiries about whether the expected costs of remedial works will be passed on
to residents.
Reasons
49. Following the initial B2 rating on the ESW1 form it was appropriate that the
landlord decided it would make further investigations at the resident’s
development and then carry out remedial works. However, it was reasonable that
the landlord decided to complete the review of all its buildings, following a risk–
–based approach, before carrying out the further investigations and works at the
resident’s development. It is also reasonable that the landlord is proceeding with
carrying out remedial works based on the B2 rating from the EWS1 form of March
2022, and consulting with the developer about these works.
50. Following the Stage 2 response it was unreasonable that the landlord did not
provide more prompt and regular updates to the resident about the progress of
inspections and remedial works, and timeframes involved. Essentially, the
landlord did not take sufficient steps to assure the resident that it was taking the
necessary action, as promptly as possible, to bring his complaint to a final
resolution. Furthermore, the landlord has failed to acknowledge the
circumstances of the resident’s case and the impact on him, including the
resident’s claim for reimbursement of a survey he paid for; in fact, the landlord’s
responses and updates were generic.
51. After sending the Stage 1 response, there is no evidence that the landlord
updated the resident about the cost of remedial works, which has prolonged his
uncertainty. It was also unreasonable that the landlord did not provide an update
to the resident after the government announcement of 10 January 2022. There is
also no evidence that the landlord has provided clarification on whether the
resident will be expected to pay for the works to the cavity barriers.
Orders and recommendations
Orders
52. The Ombudsman orders that by 7 October 2022:
a. The landlord writes to the resident with an update on the remedial works to be completed at his development. The update should:
i. Be sent regardless of whether the landlord has received a written proposal by the developer and should provide timescales for courses of further action.
ii. Address suggestions received from the resident regarding the resolution of his complaint.
iii. Confirm the landlord’s position on whether the resident will be asked to contribute to the cost of remedial works.
53. The Ombudsman orders that within four weeks of this determination:
a. The landlord sends a written apology to the resident for the failures identified in this report.
b. The landlord pays the resident £200 compensation in respect of the distress and inconvenience caused by the failings in its responses to his enquiries about the remedial work and timescales involved.
c. The landlord pays the resident £200 compensation in respect of the distress and inconvenience caused by the failings in its responses to his enquiries about whether the expected costs of remedial works will be passed on to residents.
Recommendation
54.The Ombudsman requests that the landlord confirms its intentions regarding the
following recommendations within four weeks of this determination:
a. The landlord reviews whether it has provided an informative, current update to all residents presently affected by ongoing fire safety and cladding issues.
b. The landlord reviews its communications strategy on fire safety and cladding to ensure that future developments on this issue are proactively
communicated to residents and this work is appropriately resourced.