Estuary Housing Association Limited (202218007)

REPORT

COMPLAINT 202218007

Estuary Housing Association Limited

31 October 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 the landlord’s:
1. Handling of major works.
2. Complaints handling.

Background and summary of events

Background

The resident lives at the property, which is a shared ownership flat, with her partner and baby. The flat is in a 8 story block. The resident disclosed to the landlord that following the birth of her child, she suffered from post-natal depression.
Advice Note 14 (AN14) was issued by the Government in December 2018 as part of its guidance on building fire safety. In summary, the advice was for owners of high-rise leaseholder buildings where the external wall system of the building did not incorporate Aluminium Composite Material. The advice set out checks which owners could carry out to satisfy themselves, and their leaseholders, that their building was safe. This guidance was consolidated in ‘Building Safety Advice for Building Owners’, issued in January 2020. 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 mortgage 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 December 2019 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 18 metres (six storeys). Form EWS1 was introduced as a way for building owners to confirm to lenders that the external cladding had been assessed by an expert.
As the Government’s expectations in relation to cladding and fire safety are only detailed in guidance, the landlord has discretion about how and when it chooses to comply with it.
The Ombudsman’s Spotlight Report on Dealing with Cladding Complaints published in May 2021 (the month works commenced in this case) states as follows:
1. It is essential for landlords to provide a clear road map, with timescales, to residents.
2. Effective communication is vital, and landlords need to assure themselves that their strategy for this is robust, well-resourced and proactive.
3. Landlords should always address the individual circumstances presented in a complaint.
The landlord has a three stage complaints procedure which says as follows:
1. A complaint is “an expression of dissatisfaction” and that the resident does not need to include the word ‘complaint’ for it to be dealt with as such.
2. For an informal complaint the landlord will respond within 2 working days. If it cannot be resolved, the resident can request that the matter be escalated to a formal complaint.
3. At stage 1 (formal complaint) the landlord will respond within 10 working days. If the resident is not satisfied with the response they must inform the landlord in writing within 4 weeks.
4. At stage 2 (senior leader review) the landlord will respond within 20 working days.
5. If the landlord requires longer at stage 1 or 2 it will inform the resident.

Summary of events

In March 2020 the resident’s block was identified as not being compliant with fire regulation standards and as a result the cladding needed to be replaced.
Prior to the work commencing, the landlord wrote to the residents and advised that the work would take around 18 months to complete. It explained that the work would be extensive, it would be dusty and noisy and that resident’s views would be obscured by scaffolding for prolonged periods of time. The work commenced in May 2021.
The resident contacted the landlord in June 2021 and asked about selling her property due to a change in her circumstances. The landlord advised that although there was a EWS1 form for the building, it stated that the building was not compliant with fire safety standards. The landlord advised that lenders would not consider lending on the building until the works were completed and it was signed off as compliant. It explained to the resident that it could not find any record of it having informed her that she would be able to sell her property with the current EWS1 form.
Once the works had begun, the landlord issued monthly newsletters to residents. The September 2021 issue explained as follows:
1. Residents would not have access to their balconies for at least 18 weeks, however it was working to try to reduce this.
2. The brickwork and cladding removal had been delayed as the scaffolding was being altered to enable the works to be carried out in sections.
3. Windows and doors would be protected for the duration of the works with a clear film. Additional protective coverings would be in place in areas where bricks were being removed. This additional protection would be removed at the end of the day and reinstated the following day.
4. The opening of windows and doors would be restricted to approximately 50mm to allow essential ventilation.
5. It was making arrangements for residents to have access to a quiet space at a community building.
6. It had limited space (a bike shed) to store resident’s outdoor items. It advised residents to try to consider other storage options.
The landlord continued to send monthly newsletters and in January 2022 the resident enquired if the EWS1 form could be amended to state that the works were ongoing. This Service has not seen any evidence to demonstrate that the landlord responded to this query.
The next record of correspondence provided to this Service was from 27 April 2022, when the resident stated that she had raised a complaint about the window coverings on two occasions but nothing had been done. These complaints have not been seen by this Service. Within her email to the landlord the resident said as follows:
1. The landlord had not arranged a quiet space for residents or for storage for balcony furniture.
2. She had not been told that the windows would be covered. The landlord had advised her on 5 April 2022 the window coverings would be removed the following week but it had then subsequently advised that they would remain for a further 10 weeks. She explained that she had a young baby and was suffering from postnatal depression which she felt was made worse by the windows being covered. She requested that more natural light be provided or that she be moved.
Internal correspondence from the landlord on 30 April 2022 showed that it had received a number of similar comments from other residents about the window coverings. It discussed internally if the windows could be uncovered at the end of the working week and then re-covered on the Monday morning. It concluded that this would not be time or cost effective as it wanted to prioritise completing the work. This Service has not seen any evidence that this change in approach, from what was stated in the newsletters, was conveyed to residents.
The resident contacted the landlord again on 22 May 2022 as it had not responded to her complaint. She reiterated that the situation was negatively affecting her mental health and that the lack of natural light compromised the safety of residents. The landlord apologised that it had not responded to her concerns. It offered for a member of staff to discuss the issues with her and recommended the resident attend the residents meeting that evening. During the residents meeting the landlord said as follows:
1. It would improve its communication by posting updates to residents. It had set up a new community engagement team and a housing officer would attend the block each month.
2. It had looked at ways to increase the ventilation to balcony doors and windows. Its contractor had agreed to make sure the door and window openings were at the maximum allowance.
3. It would remove the window protection between each phase. It said it would aim to replace all black coverings with white.
4. The landlord noted internally on 27 May 2022 that it had temporarily removed the window covering and that the resident confirmed that this had helped her.
On 6 June 2022, the resident asked when the scaffolding would be removed and said it was a reminder of being trapped and she could not get fresh air. The landlord advised that it hoped it would be removed in early July 2022.
On 26 July 2022 the landlord wrote to residents and said that it would pay a gratuity payment in recognition of the “stress and inconvenience” caused by the external works. It did not detail how much the payment would be, however the resident conformed in correspondence to the landlord that she had been given £168.
On 2 August 2022 the resident asked the landlord why the removal of the scaffolding had been delayed until October. She also queried why some parts of the block had been completed before her area. She said that she could not use her balcony which she had paid a lot of money for and had to run fans and air conditioning to keep cool. She requested compensation for the impact on her mental health, for increased energy costs and for not being able to use the balcony. The landlord said it would visit the resident to speak to her about her concerns although this Service has not seen any evidence that this took place.
On 28 August 2022 the resident submitted a complaint and said as follows:
1. The landlord had not provided a quiet area for residents or storage for outdoor furniture and hers was now ruined.
2. Her balcony floor had been damaged by falling debris.
3. It had misinformed her about the scaffolding being taken down in July as this had applied to a different side of the building. It subsequently advised her that it was always planned to be removed in October. She believed the landlord had prioritised the side of the building containing social housing.
4. The £168 given by the landlord was not enough to cover the additional stress the works had caused her.
On 12 September 2023 the landlord advised the resident that it had arranged for residents to have use of the café in a community building as a quiet space.
The landlord responded to the complaint at stage 1 on 21 September 2022. It advised that the complaint was not upheld and said as follows:
1. At the time of the first residents meeting, its contractor had advised that the scaffolding on the resident’s side of the building would be removed in July. Subsequently, due to material supply issues, the works were delayed. It apologised for this. It said it was completing the work “tenure blind” and was not prioritising any tenancy type.
2. It had arranged a respite opportunity at a community building for residents to use. It asked the resident to let it know if this option would not be suitable for her.
3. It had publicised that some storage facilities were available for residents. It noted that some residents either did not see this message or did not understand what was being offered. It apologised if the resident did not get the chance to store her items.
4. It advised that balconies should be fully reinstated at the end of the works.
5. To mitigate the impact on residents, it had made further adjustments to its procedures. It had tried to acknowledge the impact on residents by way of the gratuity payment which for fairness was the same amount for each phase.
On 11 October 2022 the resident escalated her complaint to stage 2, (which contained new aspects of complaint), and said as follows:
1. The removal of the scaffolding had been delayed again until November 2022.
2. The landlord should have considered tenancy type when completing the works as she could not move, whereas social residents could.
3. The offer of the respite area almost 2 years after the works started was not appropriate.
4. The landlord had not set up a designated email address for resident queries as promised.
5. Neither of the lifts were working.
The landlord acknowledged the escalation request on 17 October 2022. It said that it would open a new stage 1 complaint for the lift issue.
On 19 October 2022 the landlord met with the resident to discuss her concerns. It followed this up with an email on 21 October 2022 and said as follows:
1. There were no current delays with the removal of the scaffolding.
2. Issues with the windows not shutting would be investigated by a contractor. This was due to start the following week.
3. It discussed the possibility of the resident subletting her property.
The landlord responded at stage 2 on 1 November 2022 and said as follows:
1. It acknowledged that its communication to resident’s about the works could have been better. It advised that it was going to hold another residents meeting to improve communication.
2. It acknowledged that the community building was not an ideal area to attend with a baby and apologised for this. It noted that the resident had advised that she wanted the scaffolding to be removed before Christmas. It confirmed that the target date for removal of the scaffold was 20 December 2022, subject to the builders not finding any new issues.
3. It offered her £50 compensation for inconvenience caused. This was in addition to the £168 previously paid.
On 11 November 2022 the resident told the landlord that she was not satisfied with the complaint response and said as follows:
1. She was unable to move due to the ongoing works which kept being delayed. It was causing her “extreme stress” and was exacerbating her post-natal depression. She requested to be compensated for “living in a building site”.
2. She said that her partner had been stuck in the lift.
3. The windows had not been fixed which was causing the property to be cold.
4. She had not had use of her balcony for over 12 months. She requested a 20% rent refund for this.
On 12 December 2022 the resident referred her complaint to this Service and reiterated her dissatisfaction as above.

Assessment and findings

Scope of investigation

It appears that the resident raised the issue of not being able to close her windows during a conversation with the landlord on 19 October 2022. This however did not form part of her complaint at stage 1 or stage 2. The Housing Ombudsman complaint handling code (The Code) is clear that landlord’s should have the opportunity to address matters via their internal complaints procedure prior to consideration being given to the matter by this Service. As this aspect of complaint has not been through the landlord’s internal complaints procedure it does not form part of this investigation.
In addition, the resident raised issues about the lifts within her complaint at stage 2. As the resident had not raised this within her stage 1 complaint the landlord treated this as a separate complaint which was appropriate. The landlord confirmed to this Service that this aspect of complaint has not completed its internal complaints procedure. This Service also noted that the resident did not include this aspect in her referral to the Ombudsman. As such the landlord’s response to fixing the lifts does not form part of this investigation.

Assessment and findings

The landlord’s handling of major works

It is apparent that in response to the Grenfell Tower fire in June 2017, and the Government’s subsequent guidance on fire safety and cladding, the landlord has taken steps to comply with AN14 to improve the safety of the building and to resolve issues with the cladding. This was appropriate, as while the guidance is not a legal requirement, it has been established as best practice.
The Ombudsman appreciates that the resident’s situation has been challenging and that she has been unable to sell her property through no fault of her own. It is also acknowledged that the major works coincided with the resident having a young baby and suffering from post-natal depression. It is appreciated this this could have been exacerbated by the nature of the ongoing works.
The Ombudsman’s spotlight report on dealing with cladding complaints says 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 acknowledged that its communications could have been better, however from the evidence provided it is clear that the landlord took a number of steps to ensure that resident’s were updated on a regular basis:
1. It send out a communication before the works commenced which outlined the reasons for the work, the works required, the estimated timescale and interim measures it would put in place to ensure resident’s safety.
2. It provided monthly newsletters which explained what work had taken place that month, including picture updates and what work would be completed next. This also included contact details for its resident liaison officer.
3. It employed a resident liaison officer who had an office within the block who held twice weekly “surgeries” in addition to resident meetings at a community centre. These provided opportunities for residents to voice their concerns and receive answers to their questions.
4. It gave residents a telephone number for its 24/7 customer services line.
It is clear from the records of communication that in addition to the general communication channels above, the landlord was in regular contact with the resident and visited her on a number of occasions when she had raised concerns. It also kept her appropriately informed when delays to the planned schedule of works arose and advised of the reasons for this.
The Ombudsman appreciates that the scaffolding did impact on the resident’s enjoyment and occupation of the property. It is apparent that the landlord had to revise the date for the removal of the scaffolding due to material supply issues. This Service understands that this delay, which totalled around 6 months, would have been frustrating and distressing for the resident given her personal circumstances. The cause of the delay however appears to have been outside of the landlord’s control. The scaffolding remaining in place was required for the landlord to complete the works, which were in line with its obligation to discharge its statutory obligations and to ensure the long-term safety of the building’s occupants.
The resident requested a rent reduction of 20% for the loss of use of the balcony. It is noted that the resident was without the use of the balcony for longer than the landlord initially anticipated. In the circumstances however the landlord was limited in what it could do, as it could not permit residents access to the balconies whilst the works were taking place for health and safety reasons. Whilst the resident’s frustrations at not being able to use the balcony are acknowledged, a balcony is not an essential room and therefor a rent reduction is not something which the landlord would reasonable be expected to offer. It is apparent that the loss of the use of the balcony was an unavoidable consequence of the required major works. The landlord acted appropriately in keeping the resident updated on the progress of the works and in apologising when delays occurred.
Although there was little the landlord could do about the access to the balcony, it had advised resident’s in its September 2021 monthly newsletter that it was making arrangements for a quiet space at a community centre and it would let them know when this was in place. It was not however until September 2022 that the landlord told the resident that it had agreed with the local community centre that resident’s could use its café. This 12 month delay was not reasonable and the landlord has provided no explanation for this delay.
The landlord had appropriately advised residents in September 2021 by way of a ‘Q&A’ section in the newsletter that it had limited space to store resident’s outdoor items. It acknowledged that the resident may not have seen or noted this communication and apologised if this was the case. Whilst it is unfortunate that the resident did not see this, the landlord had taken reasonable steps to answer the query which had been put forward by residents.
Within its September 2021 newsletter the landlord made it clear that the window protection would consist of a clear film. It also said that additional protective coverings, which it would need to use during some works, would be removed at the end of the day and reinstated the following day. It is apparent from the record of correspondence that this was not the case and that the non-clear coverings were not removed as residents had been advised. The landlord’s internal correspondence showed that it considered this after a number of residents had raised the issue however it concluded that this would not be an efficient use of the contractor’s time. Whilst it is understandable that the landlord needed to balance the feedback from residents with the resources available to it, it should have appropriately advised residents that it could no longer meet the assurance it had previously given in respect of the coverings. This was an important issue for the residents and the landlord could reasonably have been expected to be aware this would have a significant impact. Not explaining the situation to residents was a failure in communication and demonstrated a lack of transparency.
The spotlight report says that landlords should ensure that their policies and procedures are sufficiently flexible to allow them to respond to an individual’s situation and consider all the possible options that might help. That should include the landlord’s position on reverse staircasing, sub-letting and buy-back and landlords should develop or amend policies where they do not exist. The landlord suggesting the option of subletting the property to the resident, however it did not do so until October 2022, this was over 15 months after the resident had advised that she wanted to move for personal reasons. Although it does not appear that the resident took up the suggestion of subletting the property, the landlord should have suggested this as an option when she first queried her inability to sell the property. There is no evidence that the landlord discussed other options with the resident such as buying back the shared ownership property. Given the vulnerability of the resident with her disclosed post-natal depression, this is something the landlord should have at least considered if it could offer. Whilst this might not have resulted in the resolution she had been seeking, she would have at least been able to consider her options from an informed position.
The landlord did take some steps to appropriately support the resident as follows:
1. It kept the resident up to date in regard to the progress of the works, the reasons for the delays and why the restrictions on the balcony and windows were necessary.
2. It clearly recognised and sympathised with the impact the works had on the resident and offered her an appropriate suggestion of subletting.
3. The landlord’s actions in completing the work “tenure blind” were reasonable. It would not have been appropriate for it to have prioritised shared ownership properties as the resident had requested.
4. It was reasonable for the landlord to offer compensation to the resident in recognition of the inconvenience caused in addition to the discretionary payment which had been made to all residents. The total amount being £218.
The landlord did not however take all the steps it could have done to consider the personal circumstances of the resident and support her with her vulnerabilities. The service failures identified below were not reasonable and taken together they amount to maladministration in the landlord’s handling of major works as follows:
1. It told residents that it would arrange a quiet area however it did not do so until 12 months later.
2. The landlord should have made it clear to residents that it could no longer remove and refit the window coverings as it had originally advised.
3. The landlord should have discussed the option of subletting or buying back the shared ownership property earlier.
To acknowledge the impact of the landlord’s failures on the resident in light of her vulnerabilities, compensation of £450 has been ordered. This is in line with the Housing Ombudsman remedies guidance where there was a failure which adversely affected the resident. The sum already offered by the landlord of £218 is to be deducted from this amount if it has already been paid to the resident.

Complaint handling

From the record of correspondence it is clear that the resident’s email to the landlord of 27 April 2022 where she stated she had been trying to make a complaint and listed the issues was an ‘expression of dissatisfaction’ and clearly amounted to a compliant. The landlord should therefore have followed its complaints policy and should have responded to this as a complaint however it did not do so. The resident chased a response to this on 22 May and 2 August 2022 however the landlord failed to acknowledge and respond to the resident’s concerns. This was not appropriate and was not in line with its policy. This contributed to further delays and frustration caused to the resident.
It was not until 28 August 2022 when the resident clearly marked her email as a complaint that the landlord dealt with the matter via its complaints procedure. Its response at stage 1, which was provided on 21 September 2022 took 16 working days, rather than the 10 days advised in its procedure. Although this was not an excessive delay there is no evidence that the landlord told the resident that the response would be delayed, it offered no acknowledgement of this delay and no apology. This was not reasonable and did not follow the dispute resolution principles of putting things right when things have gone wrong.
The landlord’s failures to accept the resident’s expression of dissatisfaction as complaints delayed the completion of the internal complaints procedure and impacted on the resident’s ability to refer the matter to this Service at an earlier stage. This was not reasonable and, given the impact on the resident, this amounts to maladministration. To acknowledge the time spent and inconvenient caused to the resident of this, compensation of £150 has been ordered. This is in line with the remedies guidance where there was a failure which adversely affected the resident.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman scheme there was maladministration in respect of the landlord’s:
1. Handling of the major works.
2. Complaints handling.

Reasons

Although the landlord’s updates and communication were overall appropriate, it failed to provide resident’s with a quiet area for 12 months. It did not update residents that it could no longer remove the window coverings at the weekends. The landlord should have considered and discussed the option of subletting or buying back the resident’s shared ownership property earlier knowing her wish to sell and her vulnerabilities.
The landlord did not deal with the resident’s expressions of dissatisfaction as complaints and so did not act in accordance with its complaints procedure. It did not respond at stage 1 within the stated timeframe and offered no apology or explanation for this.

Orders and recommendations

Orders

Within four weeks of the date of this report the landlord is ordered to take the following actions:
1. Apologise to the resident in writing for the failings identified in this case.
2. Pay the resident £600 compensation (minus £218 if this has already been paid to the resident) made up of the following:
3. £450 to acknowledge the impact to the resident of the landlord’s failures in respect of the major works
4. £150 to acknowledge the impact of the landlord’s failures in its complaints handling and the time spent and inconvenient caused to the resident.