Hyde Housing Association Limited (202001828)

REPORT

COMPLAINT 202001828

Hyde Housing Association Limited

24 June 2022

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

This complaint is about the landlord’s handling of:
1. the resident’s request for an EWS1 form;
2. the related complaint.

Background and summary of events

Background

The resident is a leaseholder who holds a lease dated 9 December 2013. The resident took on the lease in June 2018. The property is a flat within a seven-storey block.
The lease agreement shows that the landlord is responsible for maintaining and repairing the structural parts and external walls of the block.
The lease agreement also contains provision for the resident to ‘staircase’ his ownership of the property by notifying the landlord of the percentage he proposes to acquire and paying for that portioned percentage within three months of ‘the valuer’ determining the market value.
The government issued ‘Advice Note 14’ in December 2018 as part of its Building Safety Programme. The advice was for owners of high-rise leaseholder buildings where the external wall system (EWS) of the building did not incorporate Aluminium Composite Material (ACM) and set out checks which owners could carry out to satisfy themselves, and their leaseholders, that their building was safe.
In December 2019, the Royal Institution of Chartered Surveyors (RICS), the Building Societies Association (BSA) and UK Finance agreed a new industry-wide valuation process to help people buy and sell homes and re-mortgage in buildings above 18 metres (six storeys). Form EWS1 was introduced to prove to lenders that external cladding had been assessed by an expert.
The government consolidated ‘Advice Note 14’ when it issued ‘Building Safety Advice for Building Owners’ (BSA) in January 2020. Paragraph 1.4 of this guidance stated that ‘for the avoidance of doubt, building owners should follow the steps in this advice as soon as possible to ensure the safety of residents and not await further advice or information to act’ and paragraph 1.5 stated that ‘the need to assess and manage the risk of external fire spread applies to buildings of any height’.
In response to the guidance, some lenders took the view that, if certification could not be provided to demonstrate compliance with the government’s guidance on fire safety, they would be unwilling to offer a mortgage on properties within these buildings as they would have a zero valuation.
The landlord’s website has an EWS section that sets out that:
1. some lenders require an EWS1 form for blocks before they will offer mortgages but that this is a lender requirement, not a legal one
2. it is carrying out EWS surveys as part of an ongoing programme but does not ‘have to carry an EWS1 assessment on every building more than 18m tall that we own or manage’
3. an EWS assessment involves a surveyor checking ‘all the documents detailing how a building was constructed before carrying out an intrusive survey, which involves removing parts of the external wall system and taking them away for testing’
4. it would take a ‘risk-based approach to prioritising these surveys, starting with our tallest buildings with the most cladding’
5. an EWS1 form can be produced following an EWS1 assessment which it describes as ‘a visual inspection of the outside of a building’
6. for some buildings, it completes an EWS survey before deciding whether to carry out an EWS1 assessment immediately or after completing remedial works
7. it would be happy to assist with any questions from lenders albeit it may not have conducted an EWS survey of the relevant building.
The landlord has a complaints policy that sets out a two-stage complaints procedure with responses to be issued within 20 working days at each stage.
The landlord has a compensation procedure that shows that it may make a financial award where there has been a delay or incorrect information offered to a resident by it and there has been distress, anxiety or financial loss caused.

Summary of Events

The landlord wrote to the resident on 11 June 2020. It said that this was in response to a social media enquiry from him and outlined the following:
1. it explained the background to the government Advice Note 14 and that it believed that all of its buildings were safe
2. it advised it was experiencing difficulty in inspecting, testing and conducting works to buildings and confirmed why completing the inspection required for EWS1 compliance was problematic
3. it prioritised buildings at highest risk first, was trying to support homeowners in the meantime and suggested the resident contact his current lender to reiterate that ‘the property has already received lender backing’ so staircasing was ‘merely requesting a continuation of this’.
The resident also asked the landlord on 11 June 2020 how close it was to getting the EWS1-related works instructed. He chased an answer on 16 June 2020.
The landlord replied to the resident on 26 June 2020. It referred to an update from the government that it said had offered assurance to lenders.
The resident asked the landlord on 3 July 2020 for a timescale on the EWS1 survey for the building. The landlord replied on the same date, denying that the resident’s block had been prioritised and confirming it would offer an update once one was available. It added on 15 July 2020 that it did not have a priority list of buildings awaiting the EWS1 form (contrary to what the resident said he had previously been told by it – he evidenced this through a screenshot of a conversation he forwarded), it was logging the differing approaches of lenders to help shape its approach to different buildings and it hoped that more clarity would soon be offered around the building safety bill.
The resident approached this Service in August 2020 and advised that the landlord had still refused to confirm when the EWS1 form would be offered. The Ombudsman wrote to the landlord on 11 September 2020 and 6 October 2020, asking it to progress the complaint.
The landlord responded on 24 September 2020 to the resident’s request for a copy of the fire risk assessment for his block. It provided the relevant report (dated April 2020) that showed the block was seven storeys high. It noted that there was a ‘medium’ risk and recommended actions such as ensuring residents were not storing combustible items in communal areas.
The landlord’s complaints department issued a response on 9 October 2020. It concluded that:
1. it could not currently provide the EWS1 certification that the resident required
2. it referred to its correspondence of 11 June 2020 and said it would be in contact once it had any further information about the survey of the resident’s block
3. it provided links for further guidance that it was offering to its leaseholders on selling and re-mortgaging.
Following contact from the resident, this Service asked the landlord on 28 October 2020 for clarification on the status of his complaint.
The landlord wrote to the resident on 30 October 2020. It advised that:
1. it had previously said it would conduct surveys on all its 18 metre plus buildings by March 2021 and share the programme with him by the end of October 2020 but the situation had changed as it had become aware of the national shortage of suitably qualified contractors
2. it understood it was taking 90 days for companies to validate their EWS1 surveys
3. following its fire risk assessment (type 4) building safety inspection programme, it had identified 15 buildings where major works were underway and it hoped to begin a wider programme of inspections and follow-on works from June 2021
4. it could provide a copy of his block’s fire risk assessment to the resident albeit the lender may insist on an EWS1 form.
Following contact from the resident, this Service wrote to the landlord on 6 January 2021 and 9 March 2021, asking it to progress the resident’s complaint.
The landlord issued a complaint response to the resident on 21 April 2021 (it later confirmed that this was its final complaint response). It apologised for the delay in responding and concluded that:
1. it had delayed in its communications and complaint handling for which it awarded £250 compensation
2. its current response on the EWS1 would be the same as its previous correspondence of 11 June 2020 and 9 October 2020
3. it would ‘continue to seek more specific timelines for works to be undertaken’ and offer a further update by 7 May 2021.
The resident advised this Service on 21 April 2021 that he was dissatisfied with the level of compensation awarded and the landlord’s failure to follow its own procedures.
The landlord updated the resident on 24 May 2021, advising that it was re-assessing its buildings in light of recent RICS guidance to see if an EWS1 form was still required and would offer an update to residents (of blocks six storeys or higher) the following month.
The resident advised this Service in July 2021 that he believed he had lost £15,000 as he was going to staircase the property but his mortgage provider had turned this down due to the EWS1 issue. He said that the landlord had not immediately instructed the EWS1 surveys and he had missed the stamp duty holiday.
The resident wrote to the landlord on 12 August 2021, asking why two other blocks on his estate were being treated differently to his own. The landlord offered an explanation on 13 August 2021, indicating that one of the blocks was similar to his own (at more than 18 metres tall but with less than 40% cladding) and the other had less cladding; it advised that it would be ‘receiving an EWS as a way of understanding what system is in place there where cladding is installed and if the EWS complies with the guidance’.
The resident asked for clarification on the same date as the landlord said that one of the blocks was the same height and cladding as his and that a visual survey may be sufficient. He chased this on a few occasions during late August-early September 2021.
The landlord and resident exchanged emails during 7-8 September 2021 – the former advised that the resident’s block did need an external wall survey which the resident queried given his block and the neighbouring block (which the landlord said only needed a visual survey) were the same. The landlord said its prioritisation of buildings was reliant on its fire engineers and the resident had all the information it could provide.
The resident acknowledged the landlord’s information on the same date and asked it to correct the information on its website that showed his block was due to have an EWS survey between March 2022 and April 2023 (and the neighbouring block was due to have a visual inspection of EWS by March 2022).
The landlord’s website shows that there was an update as recently as 6 June 2022, apologising for it being slow in updating residents on the EWS programme and advising that it was finalising a new programme to be uploaded ‘very soon’.

Assessment and findings

EWS1

The Ombudsman’s guidance note on fire safety and cladding sets out that, as the government’s expectations about this matter are only currently detailed in guidance, there is an element of discretion for a landlord as to how and when it chooses to comply. The Ombudsman’s guidance further advises that, when investigating a complaint relating to fire safety and cladding, the Ombudsman will consider the following points:
1. what are the landlord’s long-term plans for compliance with the guidance and are these fair and reasonable?
2. how has it communicated with residents regarding the situation and was this communication appropriate?
3. how has it responded to the individual circumstances of the resident?
During the period covered by this complaint, the government’s ‘Advice Note 14’ applied to the building as this recommended that building checks were conducted to all properties. This meant that the landlord was expected to carry out checks to ensure that the cladding system was safe and to conduct any necessary remedial works.
This Service has not been provided with a copy of the social media enquiry that prompted the landlord’s initial response in June 2020. However, that response adequately set out the context of building safety over recent years, some of the difficulties it had experienced in balancing the requirements of mortgage lenders and valuers with its aim to reduce costs for leaseholders and the practical challenges involved in simultaneously inspecting, testing and conducting works to all of its housing stock. It was reasonable for the landlord to offer an overview of its efforts to comply with government guidance at this point albeit it did not give a direct update about the resident’s block.
The resident subsequently asked the landlord in June-July 2020 for specific information on when the EWS1 survey would be done for his building. The landlord responded in mid-July 2020, stating that it had not established a priority list for its buildings. This seemed to contradict advice it had previously offered him that it had prioritised his block and the landlord had still failed to offer any meaningful update to him on timescale by the time his complaint exhausted the complaints process in April 2021.
While the Ombudsman recognises that the process to achieve compliance with government guidance has been complicated and required input from experts, the landlord should have been in a position during 2020 to provide more information to the resident about its long-term plans to comply and how this impacted the resident’s block. Given the original guidance was issued in December 2018, the prominence of the cladding issue within the housing sector and the likely impact on leaseholders, it was unreasonable that the landlord was still unable to reassure the resident during 2020 as to how it was determining which buildings needed to be considered first, when his block would be surveyed and how soon an EWS1 form was likely to be obtained.
Although there was an element of discretion for the landlord as to how and when it chose to comply with the government’s guidance, it was unreasonable that there was no transparency offered to the resident on when his block would receive the initial ESW assessment the landlord’s website said it would undertake to all of its buildings and whether it was likely that a full EWS1 assessment would be done. There was no specific advice given to the resident about his block until August 2021, more than 12 months after his initial enquiries.
When the landlord did provide information specific to the resident’s block (in August 2021), it told him that it was over 18 metres high and less than 40% cladded so it would undertake an EWS. However, over the following week or so, it also told him that it did not know if the building was the same height as a neighbouring block and exactly how much cladding there was; nevertheless, it told him that ‘the prioritisation of buildings has been determined based on our current recommendations and advice from our fire engineers’. Although it was appropriate for the landlord to take advice from its experts, it was unreasonable that it was unable to explain how its fire engineers had decided when the resident’s block would receive the EWS and what criteria they had used to reach this decision or to offer an answer as to why a similar neighbouring block was being dealt with differently.
In summary, although the landlord advised the resident of practical difficulties with the EWS process and provided general information to him, it delayed unreasonably from June 2020 to August 2021 in offering the resident an explanation as to how his block had been prioritised for a survey and a likely timescale on when this would occur.

Complaint handling

The resident initially advised this Service in August 2020 that the landlord had not resolved his complaint. This led to the landlord being asked in September-October 2020 for the complaint to be progressed. The landlord issued its initial complaint response on 9 October 2020. This was within the 20-working day period that the landlord is obliged to issue an initial complaint response within so was appropriate.
The resident subsequently approached this Service again and this led the Ombudsman asking the landlord to progress the complaint in January and March 2021. The landlord failed to issue its final complaint response until 21 April 2021. This was more than two months outside of the 20-working day period outlined in the landlord’s complaints policy for a final complaint response and was therefore inappropriate.
However, the landlord apologised for this delay within its final complaint response and awarded £250 compensation for any inconvenience caused. This demonstrates that the landlord fully acknowledged its failings and its compensation award was within the range that the Ombudsman recommends for a failure to meet service standards. Given the delay was not over an extended period of time and there is minimal evidence of the resident having to chase the landlord for progress in the meantime, this level of compensation represented appropriate redress for the failure.
In summary, the landlord delayed unreasonably in providing a response to the resident at the final stage of its complaints process. However, its apology and compensation award represented appropriate redress for this complaint handling service failure.

Determination

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its handling of the resident’s request for an EWS1 form.
In accordance with paragraph 55b of the Housing Ombudsman Scheme, the landlord has offered reasonable redress to the service failures identified in its handling of the related complaint.

Reasons

The landlord failed to communicate any details of its EWS plan to the resident during June 2020 to August 2021 so it was unclear when his block would be surveyed, what type of survey this would be and what criteria it had used in its prioritisation decision-making.
The landlord delayed by more than two months in sending the resident its final complaint response but its apology and £250 compensation award were fair given the circumstances of the case.

Orders

The landlord to write to the resident to:
1. apologise for the service failures identified in this report;
2. update him on when it expects to be able to issue a revised EWS programme;
3. advise him what specific criteria it has used to determine his block’s place in the programme.
The landlord to pay the resident compensation of £450 in recognition of the inconvenience and time and trouble caused to him by the failures in its handling of his request for an EWS1 form.

The landlord should confirm compliance with these orders to this Service within four weeks of the date of this report.

Recommendations

If it has not already done so, the landlord to pay the resident the compensation of £250 that it awarded in its final complaint response in April 2021.

The landlord should confirm its intentions in regard to this recommendation to this Service within four weeks of the date of this report.