London & Quadrant Housing Trust (202001937)

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REPORT

COMPLAINT 202001937

London & Quadrant Housing Trust

2 February 2021


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

  1. The complaint is about the landlord’s:

a.     Response to the residents’ request that the landlord complete form EWS1 to allow them to proceed with the sale of their property

b.     Communication and complaint handling

Background and summary of events

Background

  1. The residents are the leaseholders of the property which the complaint concerns.  The landlord is the freeholder.
  2. The property is a flat situated in a purpose–built block (the building).
  3. Advice Note 14 will be referred to throughout the assessment.  This advice note was issued by the Government in December 2018 as part of its Building Safety Programme.  In summary the advice was for owners of high-rise leaseholder buildings where the external wall system of the building did not incorporate Aluminium Composite Material (ACM).  The advice set out checks which owners could carry out to satisfy themselves, and their leaseholders, that their building was safe.  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”.
  4. 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.
  5. In January 2020 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 meters (six storeys).  Form EWS1 was introduced to prove to lenders that external cladding had been assessed by an expert.

Summary of events

  1. On 11 September 2019 the residents wrote to the landlord setting out that they were in the process of selling the property and the buyer’s lender had requested confirmation that the cladding on the building was compliant with Advice Note 14. The residents requested that the landlord provide documentation confirming compliance urgently.
  2. On 23 September 2019 the landlord informed the residents that the property did “not have a fire certificate”.  The landlord said a fire engineer would not sign one for a building prior to removing cladding.
  3. On 3 October 2019 the residents wrote to the landlord regarding Advice Note 14.  In summary the residents said:

a.     They had been informed by the landlord that it did not have the information required by the lender demonstrating compliance with Advice Note 14 for the building.

b.     While they understood that demonstrating compliance with Advice Note 14 was a national problem, the landlord should “be better prepared… to enable [it] to assist [its] leaseholders”.

c.      They would like the landlord to inspect the property promptly in order to provide certification demonstrating compliance with Advice Note 14 in order to allow the sale of the property to proceed.

  1. On 18 October 2019 the landlord wrote to the residents setting out that it was waiting for a response from its cladding team regarding their enquiry in relation to Advice Note 14. 
  2. On 25 October 2019 the landlord responded to the residents’ correspondence dated 3 October 2019.  In summary the landlord said:

a.     Building Services had visited the site and looked into the construction details on the building.  The landlord said that the building was “predominately brickwork with a composite material in the window panels thought to be Trespa or similar, [with] Ecodeck system on the balconies and large areas of glazing”.  The landlord said that “none of these limited areas of cladding would be seen to be sufficient to risk the surface spread of fire to warrant any form of removal or remediation at present – but [it] would carry out further investigations…”

b.     Further testing was required by a qualified fire engineer to confirm compliance with Advice Note 14.  The landlord explained that this would involve intrusive testing of the building.

c.      It was carrying out intrusive surveys on a number of blocks on a priority basis based on all relevant risks on each building using “a matrix”.  The landlord confirmed that the building was going to be on the “lower sections of [the] programme” as it was “almost entirely built of non-combustible products”.  The landlord advised that it had no plans at present to escalate the priority of the building based on the information it held.

  1. On 25 October 2019 the residents wrote to their MP regarding the landlord’s response to Advice Note 14 in relation to the building and to request assistance.  Within their correspondence the residents explained that they had been “unsuccessful in persuading [the landlord] of the urgency of commissioning a report for [the building]”.  The residents copied their correspondence to the landlord.
  2. On 28 October 2019 the landlord wrote to the residents to acknowledge their recent correspondence, setting out that it would investigate the issues which they had raised.  The landlord confirmed that it would provide an update within the next 10 working days.
  3. On 11 November 2019 the residents wrote to the landlord setting out that it had “failed to provide an adequate response to [their] concerns raised regarding fire safety” at the building.  Within their correspondence the residents noted:

a.     Despite the landlord committing to complete relevant fire checks by May 2019, as reported on the Social Housing website, it had not done so in relation to the building.

b.     Despite the landlord confirming that all fire assessments in respect of the building were up to date they had seen no evidence of this.  The residents said that they were concerned regarding the fire safety of the building

c.      The building had been deemed low risk.  The residents asked the landlord what checks had already been completed to award the rating.

d.     A date had not yet been set for the assessment required to prove compliance with Advice Note 14.  The residents asked if the assessment could be expedited.  The residents stated that they had sourced a company with “credentials” who could complete the assessment promptly which could run in parallel with the landlord’s assessment of high risk buildings.

e.     The landlord’s communication on the matter had been poor.

f.        They “assumed” that the landlord was focusing its resources on ensuring its new developments were compliant with Advice Note 14 rather than buildings were which already occupied.

  1. On 20 November 2019 the residents chased for a response to their recent correspondence.
  2. On 25 November 2019 the residents wrote to the landlord as they had not received a response to their on-going concerns regarding Advice Note 14 in connection with the building.  The residents said that the issue had “been dragging on for well over five months” without a comprehensive response on the cladding issue.
  3. On 29 November 2019 the landlord wrote to the residents.  The Ombudsman has not been provided with a copy of the correspondence.
  4. On 16 December 2019 the residents responded to the landlord’s letter dated 29 November 2019.  In summary the residents said:

a.     The landlord’s letter dated 29 November 2019 was “not only ambiguous but completely inadequate” and did not provide any additional information to what it had already provided.

b.     It was unacceptable that the landlord said that the issue was beyond its control as there were steps it could take to resolve the matter.  The residents noted that they had provided details of a company who could carry out an inspection in line with Advice Note 14.  The residents asked the landlord to explain why it was not prepared to instruct the company.

c.      It was unacceptable that the landlord had not provided a targeted timeline for resolution other than stating that the programme of work would likely take several years to deliver.  The residents asked the landlord to provide a timeline for the inspection of the building.

d.     While Advice Note 14 was not a legal requirement the landlord had a responsibility to act reasonably to its leaseholders who were increasingly concerned about their safety, in addition to financial implications.

e.     The landlord’s approach in hoping that the Government would provide some clarity on the proportionate implementation of building safety advice notes was unreasonable.

f.        The landlord must explain why the building had been deemed low risk.

g.     The landlord should provide the following documents in respect of the building:

  1. Fire risk assessments
  2. Building control sign off
  3. Approval from the licensed warranty provider
  1. On 8 January 2020 the residents chased the landlord for a response to their correspondence.
  2. On 23 January 2020 the landlord provided a response to the residents’ concerns under its complaint procedure.  In summary the landlord said:

a.     It was sorry that it had not been able to provide the residents with the information they were requesting in relation to Advice Note 14 and the building.  The landlord said that the situation would have been “very frustrating”.

b.     In the “short-term at least” it could not provide certification pursuant to Advice Note 14. 

c.      If the process could be completed conclusively the result then needed to be analysed and any resulting work planned and carried out before the correct evidence could be provided.  The landlord confirmed that it was a “complex and lengthy process”.

d.     As the Government’s guidance was extensive, it anticipated that the majority of its buildings would require some form of remedial work.  The landlord confirmed that it must therefore prioritise inspections based on a building’s risk and it expected its programme of works to take several years to deliver.

e.     Form EWS1 had been introduced. The landlord confirmed that “this new process [was] designed to try and help people in tall buildings to sell or remortgage their homes”.  The landlord set out the process however still required professional fire safety experts to assess the materials used on the external walls of buildings, which was likely to require an intrusive survey.

f.        It owned over 200 buildings affected by Advice Note 14 and therefore it must prioritise inspections and any remedial works based on risk.

g.     As the building was “a majority brick-built structure” it was deemed low risk.  The landlord confirmed that it did not have a timescale for the inspection to be carried out.

h.     It could not give permission for an independent investigation to be commissioned because “the extent of the inspections required would cause significant damage to the building which [it] would then need to repair”.

i.        While it could not provide certification pursuant to Advice Note 14 at this time it did not mean the building was unsafe.

j.        It was not a legal requirement for a building to meet the conditions of Advice Note 14, however some mortgage lenders had taken the view that if independent certification could not be provided to demonstrate compliance they would not offer a mortgage.

k.      The building had:

  1. Building control sign-off following completion
  2. Approval from a licensed warranty provider following completion
  3. An up-to-date fire risk assessment.  The landlord noted that it reviewed these each year and any recommendations were dealt with immediately or put into a programme of work to be completed as soon as possible.

l.        Along with other housing associations it was calling on the Government to step in.

m.   It was aware that the residents had contacted their MP in respect of the matter.

n.     Lenders’ response to Advice Note 14 was beyond its control however it appreciated that the situation was difficult.

  1. The landlord concluded by confirming that its response was given at the final stage of its complaint procedure and therefore the residents may contact the Ombudsman if they were not satisfied with its position.
  2. As the residents were not satisfied with the landlord’s response, they referred the complaint to this Service. 
  3. Following the end of the complaint procedure the residents have continued to chase the landlord for details of the inspection to confirm the building’s compliance with Advice Note 14.  The residents confirm that they continue to be dissatisfied with the landlord’s response to the Government’s guidance on fire safety and cladding.  This includes that the landlord’s timescales for complying with the guidance is open-ended, that the landlord’s communication is poor and not transparent.  The residents have also raised concerns that the landlord has obtained certification (form EWS1) for its new developments which are not occupied, ahead of its existing buildings which are occupied.
  4. The Ombudsman notes that in February 2020 the residents commissioned form EWS1 in respect of the property only (not considering other parts of the building).  The completed form EWS1 confirmed that there “are no attachments whose construction includes significant quantities of combustible materials”.  The residents also provided the landlord with a quote from a RICS approved chartered surveyors for the costs of undertaking a EWS1 survey at the block.
  5. Correspondence through June 2020 confirmed the landlord’s stance that it was not willing to depart from its risk based prioritisation approach. The landlord did not agree to instruct surveyors outside of this approach, in part due to the risk of damage to the property that may not be covered by its insurers.  However, the landlord did agree to consider whether it was possible to develop a system for low risk blocks that it would operate in tandem.   This was not explored as part of the landlord’s response to the complaint.
  6. The residents contacted the Ombudsman on 15 June 2020.  The residents said:

a.     They had been unable to sell the property since August 2019. 

b.     Two sales had fallen through, one in January 2020 and a second in May 2020.  The residents said that both times the sales had failed due to the lack of a signed EWS1 form confirming that the external walls of the building were fire safe.  

c.      They had spent approximately 60 hours trying to get the dispute resolved through liaison with the landlord and had engaged with two departments and five individual staff.  

d.     They had instructed their own inspection and had a signed EWS1 for the property. 

e.     They had lost money through legal fees and sought legal opinion.  

f.        No resolution had been found and the landlord had designated the building as low priority and action to resolve the situation was likely to take some considerable amount of time.

Assessment and findings

  1. The Ombudsman’s internal guidance for caseworkers considering complaints about cladding[1] sets out that, as the Government’s expectations in relation to cladding and fire safety are only detailed in guidance, there is an element of discretion for a landlord as to how and when it chooses to comply with it. 
  2. The Ombudsman’s guidance further sets out that when investigating a complaint relating to the Government’s guidance on fire safety and cladding the Ombudsman will consider the following points:

a.     What are the landlord’s long-term plans for compliance with the guidance and are these fair and reasonable?

b.     How has it communicated with shared owners/leaseholders regarding the situation and was this communication appropriate?

c.      How has it responded to the individual circumstances of the leaseholder?

  1. These points will be considered when assessing whether the landlord’s actions and response to the complaint were fair in all the circumstances.

The landlord’s response to the residents’ request that the landlord complete form EWS1 to allow them to proceed with the sale of their property 

  1. As the Government’s expectations in relation to cladding and fire safety are only detailed in guidance, there is an element of discretion for a landlord as to how and when it chooses to comply with it.  
  2. It is clear from the landlord’s correspondence with the residents, in addition to information published on its website[2], that the landlord is taking steps in order to comply with the Government’s guidance in respect of the building.  This is because the landlord explained that it will be responding by inspecting its buildings and then completing any remedial work identified.  In the Ombudsman’s opinion this is appropriate as, while the guidance is not a legal requirement, it has been established as best practice in relation to building safety and form EWS1 is required by lenders.
  3. Within its correspondence to the residents and on its website the landlord explained that it is taking a risk-based approach to prioritising its buildings for inspection considering height, occupancy and known building materials.  In the Ombudsman’s opinion it is appropriate that the landlord has shared this information, to provide an outline of its approach and to demonstrate that its approach in prioritising the inspections is fair and rational.  The landlord also explained that the inspection would take a significant amount of time to complete.  In the Ombudsman’s opinion this was appropriate to manage the resident’s expectations.  The Ombudsman recognises that the process to obtain certification is complicated and requires input from experts.  The Ombudsman can see that the landlord informed the residents in November 2020 that the inspection was due to take place between January 2021 and March 2021.
  4. The landlord has completed fire risk assessments of the building.  The Ombudsman understands that the landlord has used the assessments to prioritise the building for inspection.  The Ombudsman notes the following fire risk assessments completed prior to the landlord’s final response:

a.     22 June 2017 – property risk rated “acceptable” meaning “risk is either no greater than everyday living or is deemed to be so minimal that management decide to accept the risk”.  In relation to cladding the assessment noted “the external faces of each sides of the building are brick built based and have no external cladding or curtain walling that contain combustible materials – no further action required”.

b.     29 January 2019 – property risk rated “moderate” meaning “it is essential that efforts are made to reduce the risk”.  In relation to the construction of the building the assessment noted “the building is essentially a flat roofed steel and concrete framed structure with extensive glazing within powder coated metal screen sets to all elevations, and metal balconies. Floors are formed by concrete slabs, and the main central core staircase is also concrete constructed. Internal walls between flats and risers etc. appear to be of solid construction. All external elevations are brick faced”.

c.      6 January 2020 – property risk rated “low” meaning “no major additional controls required however they should be considered where possible to do so”.  In relation to cladding the assessment noted “there are multiple sections of the external walls of the building measuring approximately 0.5m squared that are clad with a material that was impossible to identify at the time of the inspection – all information of the cladding will be passed to building services surveying team for investigation and to be added to the ongoing cladding data records”.

  1. The landlord has provided information from the building visit undertaken by Buildings Services.  The landlord confirmed that Building Services visited on 27 August 2018 to look at the cladding.  The landlord confirmed that the findings were that the cladding was not High–Pressure Laminate and the masonry behind the panels was “very low risk”.
  2. As the landlord identified from the fire risk assessments that the building was low risk and the conclusions of its Buildings Services had found that the building was “almost entirely built of non-combustible products” in the Ombudsman’s opinion the landlord’s decision to prioritise the building’s inspection as low risk was reasonable.
  3. While the Ombudsman accepts that a risk based approach is a reasonable method for prioritising buildings for inspection and remediation in relation to Advice Note 14, in the Ombudsman’s opinion the landlord’s approach does not take into account that not all leaseholders are in the same situation or circumstances and may be significantly affected if they are required to wait for buildings with a higher priority to be dealt with first.
  4. In this case the residents wished to sell the property but were unable to do so as form EWS1 was not available for the building.  The Ombudsman cannot see that in considering the residents’ concerns in relation to form EWS1 the landlord considered the impact of its prioritisation policy on their individual circumstances, namely that its strict adherence to the policy meant that they would likely be unable to sell the property for a significant period of time which could be longer than leaseholders in higher priority buildings. There is also no evidence that the landlord explored their reasons for selling the property.  In the Ombudsman’s opinion it was unsatisfactory that the landlord did not do so.  The Ombudsman considers that this would have been appropriate in order to determine if there were any actions the landlord could take to mitigate the adverse effect of its risk based approach on the residents.  
  5. The Ombudsman notes that after the end of the complaint procedure and in September 2020 the landlord provided details of lenders who had offered mortgages on properties despite a building not having form EWS1.  In the Ombudsman’s opinion it would have been useful for the landlord to have provided this information at an earlier time to assist the residents in relation to the sale of the property.
  6. In response to the residents’ request that the landlord give permission for an independent investigation to be commissioned to demonstrate compliance with Advice Note 14 and to produce form EWS1 in respect of the building, the landlord refused the request.  In refusing the request the landlord explained that it was because of the intrusive nature of the inspection and potential damage to the building that it would be required to put right.  In the Ombudsman’s opinion the landlord did not give due consideration to the residents’ proposal by taking into account that they explained that all leaseholders in the building were committed to this approach, it could provide a quicker resolution to lending on properties within the building and the findings from Building Services which identified that the cladding was low risk.  The Ombudsman does not accept that giving permission would necessarily set a precedent for similar requests in the future as each request should be considered on its individual circumstances.
  7. While not covered under the period under investigation, the Ombudsman notes that on 11 September 2020 the landlord explained to the residents why form EWS1 had been produced for some of its unoccupied new developments.  The landlord said “new buildings are inspected as part of the development process, because [it is] on site and this [enabled it] to obtain an EWS1 form as part of this procedure.  It’s an easier requirement to provide the certification as part of the new build process.  Older buildings require intrusive inspections as one cannot solely rely on the data that is held about the building, in that we are not close enough to its original construction and [it has] to corroborate the date [it held] with a physical inspection”.

The landlord’s communication and complaint handling

  1. From a review of the chronology of the landlord’s communication with the resident regarding Advice Note 14, the Ombudsman is not satisfied that the landlord’s communication overall was always satisfactory. 
  2. This is because the landlord’s responses were not always timely and on a several occasions the residents were required to chase for a response.  Given the nature of the issues being pursued by the residents, the impact on their ownership of the property, and noting that the issue was through no fault of their own, this was unsatisfactory and would have increased the residents’ anxiety and frustrations.
  3. The Ombudsman can see that the residents first raised their query on 11 September 2019 but the landlord did not provide a substantive response until 25 October 2019.  As Advice Note 14 was issued in December 2018, in the Ombudsman’s opinion the landlord should have been aware by September 2019 the potential impact of the guidance and therefore it was not reasonable for the residents to have to wait over six weeks for a substantive response.
  4. In responding to the complaint the Ombudsman considers that the landlord missed the opportunity to fully consider the individual circumstances of the residents’ case and to explore actions that it may take to mitigate the adverse effect on individual residents of its risk based approach in prioritising inspections to demonstrate compliance with Advice Note 14.
  5. In the Ombudsman’s opinion it was reasonable for the landlord to confirm that its formal response, dated 23 January 2020, to the complaint was its final position on the matter, and therefore to signpost the resident to this Service. 

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was:

a.     Service failure by the landlord in respect of the landlord’s response to the residents’ request that the landlord complete form EWS1 to allow them to proceed with the sale of their property 

b.     Service failure by the landlord in respect of its communication and complaint handling

Reasons

  1. The Ombudsman appreciates that the residents’ current situation is difficult and that they are in this position through no fault of their own.  This is because until the landlord is able to provide certification, in line with the Government’s guidance, the residents are effectively in limbo as they are unable sell the property as lenders will not lend on it because of the potential cladding issue.
  2. The Ombudsman is satisfied that the landlord is taking appropriate steps in response to fire safety and the Government’s guidance, as it has committed to inspecting the building and undertaking any remedial works to make the building compliant with Advice Note 14.
  3. As the landlord identified from the fire risk assessments that the building was low risk and the conclusions of its Buildings Services had found that the building was “almost entirely built of non-combustible products”, in the Ombudsman’s opinion the landlord’s decision to prioritise the buildings inspection as low risk was reasonable.
  4. While the Ombudsman accepts that a risk based approach is a reasonable method for prioritising buildings for inspection and remediation in relation to Advice Note 14, the Ombudsman cannot see that, in considering the residents’ concerns in relation to form EWS1, the landlord considered the impact of its prioritisation policy on them or their reasons for selling the property.  The Ombudsman considers that this would have been appropriate in order to determine if there were any actions the landlord could take to mitigate the adverse effect on individual residents of its risk based approach.  

 

 

  1. In the Ombudsman’s opinion the landlord did not give fair consideration to the residents’ proposal to independently commission an inspection to demonstrate compliance with Advice Note 14 and to produce form EWS1 which took into account the circumstances of the case.
  2. In the Ombudsman’s opinion the landlord’s complaint handling was not satisfactory.  This is because the landlord’s responses were not always timely and on a several occasions the residents were required to chase for a response.  Given the nature of the issues being pursued by the residents, the impact on their ownership of the property, and noting that the issue was through no fault of their own, this was unsatisfactory and would have increased the residents’ anxiety and frustrations. 

Orders and recommendations

Orders

  1. The landlord should pay the residents £250 compensation in respect of its response to the resident’s request to complete form EWS1 to allow them to proceed with the sale of the property within four weeks of the date of this report.
  2. The landlord should pay the residents £200 compensation for its poor communication and complaint handling with the resident within four weeks of the date of this report.
  3. That the landlord should meets with the residents to explore whether there are actions it can take that may assist them whilst they wait to be able to sell their home.  This should include further consideration of the residents’ proposal to independently commission an inspection to demonstrate compliance with Advice Note 14 and to procedure form EWS1.   The Ombudsman notes that current lockdown restrictions will affect the parties’ ability to meet and therefore proposes that the landlord should offer the residents a virtual meeting, within four weeks of the date of this report.

Recommendations

  1. The landlord should write to the residents (and other leaseholders within the building) to confirm the status of the inspection to demonstrate compliance with Advice Note 14 within four weeks of the date of this report.
  2. The landlord review its risk based prioritisation approach and ensure that, within each priority banding, that it considers what support and assistance it can offer to leaseholders seeking to sell their homes whilst waiting for assessments and any remedial works to be completed.

[1] https://www.housing-ombudsman.org.uk/about-us/corporate-information/policies/dispute-resolution/guidance-on-cladding/

[2] https://www.lqgroup.org.uk/your-home/homeowners/information-for-leaseholders-who-live-in-apartment-blocks