London & Quadrant Housing Trust (L&Q) (202120759)

REPORT

COMPLAINT 202120759

London & Quadrant Housing Trust

9 August 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:
1. The landlord’s response to the resident’s request for information about fire safety and cladding on the block he owned a shared-ownership property in, to enable him to complete the sale of the property;
2. The landlord’s response to the resident’s request that it buy-back his shared ownership property.
This investigation also considers the landlord’s:
1. complaint handling.

Background and summary of events

Background

The resident is a shared owner and purchased a 25% share of the property from the landlord in December 2016. He pays rent on the remaining proportion of the property.
The resident’s property is a one-bedroom ground floor flat within a larger five-storey block of 79 flats.
The freehold of the block is owned by a third party (the freeholder) and is managed by a managing agent (the agent).
The block adjoins another block of flats which is also owned by the freeholder. The two buildings were developed on the same plot of land.
The Regulatory Reform (Fire Safety) Order 2005 requires the responsible person (landlords or building owner) to carry out regular fire risk assessments (FRA) in the common areas of blocks of flats and take action to minimise the risk of fire. The landlord’s records show that a FRA is required for the resident’s block but that the landlord is not responsible for carrying this out.
Following the tragic events of Grenfell in June 2017, in December 2018 the government issued ‘Advice Note 14’ as part of its building safety programme. This set out expectations on owners of buildings of over 18 metres in height where the external wall system of the building did not contain aluminium composite material (ACM). The advice outlined checks which owners could carry out to satisfy themselves, and their leaseholders, that the building was safe. In January 2020 this guidance was consolidated in ‘Building Safety Advice for Building Owners’. Paragraph 1.4 of this guidance states “for the avoidance of doubt, building owners should follow the steps in this advice as soon as possible to ensure the safety of residents and not await further advice or information to act”.
In response to the guidance some lenders took the view that, if certification could not be provided to demonstrate compliance with the Government’s guidance on fire safety, they would be unwilling to offer a mortgage on properties within these buildings as they would have a value of £0. This effectively halts the sale of such properties, leaving residents in high-rise blocks unable to sell and ‘stuck’ in their properties.
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.
In March 2021, the RICS issued new proposed guidance which sought to remove the need for an EWS1 form for buildings taller than 18m with no cladding, as well as buildings of under six storeys with less than a quarter of the external wall covered in non-metal composite cladding. The guidance came into force on 5 April 2021.
This Service has asked the landlord to confirm the height of the building and whether it adjoins any other buildings. The landlord has stated that, as it does not own the building, it does not have this information. It also stated “Even if we had approximated the height, it would not be appropriate to give this information to the Ombudsman (unless the building owner had given it to us). This is information that the building owner has responsibility for and is only data that they can provide”.

Fire Safety policy

The landlord’s fire safety policy, updated in January 2021, states that for high rise blocks of over 18 metres in height and “blocks of a complex nature which may be below 6 storeys”, FRA’s are required annually. Medium risk properties (between five storeys and 18 metres tall) should be tested every three years. This Service has asked the landlord to confirm what risk level it has assigned to the building. The landlord stated that, as it did not own the building, it has not given the building a risk rating.
The policy states that where the building is managed by an agent, the landlord will request confirmation annually that they are meeting their obligations and that a FRA has been carried out and actioned. The landlord has stated it last formally requested confirmation from the freeholder had a FRA had been carried out on the building in 2022. The landlord has not provided evidence of the freeholder’s response or a copy of the FRA.
The policy states the landlord will “arrange a comprehensive inspection programme of external wall systems in buildings to be delivered following the Consolidated Advice Note issued by [the government]” and an external wall system 1 form (EWS1) “will be required as part of the information provided following these inspections”. The landlord has stated that this building is not on its programme of inspections as the building owner “is the one who inspects and is the correct party to provide answers”.

Voluntary buy-back policy and procedure

The landlord operates a voluntary buy-back policy which states that it acknowledges that “where buildings are found to need major remedial work that renders a property unmortgageable, it may be in best interests of both the customer and [the landlord] to agree to a voluntary buy-back of the leaseholder or freeholder’s home”.
The policy states the landlord will consider buy-back where:
1. It is aware that the property is “unmortgageable to potential 3rd party buyers”
2. And, where required remedial works will take more than 12 months to complete “and cannot be reasonably undertaken whilst the property is occupied”.
The landlord must ensure that it adheres to the value for money standard of the regulatory framework to “ensure that optimal benefit is derived from resources and assets and optimise economy, efficiency and effectiveness in the delivery of their strategic objectives”.
The landlord has a ‘buy-back panel’ which considers cases where a property meets the criteria for voluntary buy-back and where a case does not meet the criteria but are “considered to be exceptional and therefore need to be reviewed”.
The buy-back procedure defines “exceptional circumstances” as:
1. Financial hardship (eg unable to afford to make payments due to loss of earnings), and;
2. Vulnerability (eg severe mental ill-health, domestic violence, safeguarding issues, physical ill-health as a result of a property defect)
The landlord’s policy states it will not consider buy-back solely on the basis of financial hardship.

Complaints and compensation policy

The landlord operates a two stage complaints policy:
1. Stage one complaints will be acknowledged by the end of the next working day and responded to within ten working days.
2. Stage two complaints will be acknowledged within two working days and responded to within 20 working days.
The landlord’s compensation policy states that it may pay compensation where there has been a failure in the landlord’s service to recognise the impact on a customer. It says payments will recognise individual circumstances and does not provide guideline amounts.

Summary of events

In June 2020 the resident placed his property for sale. In its email providing its draft property advertisement, the landlord stated, “I also need to ask if you have checked that the sale of your home will not be affected by the current cladding issues as detailed on our website.” The landlord’s website states that “Some residents and buyers in our apartment blocks may experience issues securing mortgages as a result of changes in building safety advice” and advises leaseholders to seek advice from their lender or mortgage broker.
On 30 June 2020 the landlord received an enquiry from a potential buyer of the property.
On 1 September 2020 the resident advised the landlord he was in the process of selling his property and the buyer required “information regarding the material of the building’s surrounding windows and balconies” following a surveyor’s report.
The resident contacted the landlord on 11 September 2020 stated he was “shocked and disappointed” that the landlord had written to him “regarding the EWS1 certificate and it’s ramifications”. He stated that government updated requirements relating to EWS1 certificated in January 2020 but that the landlord had not advised him of the changes until 27 August 2020.
On 24 September 2020 the resident contacted the landlord to request a copy of the building control sign off certificate and FRA certificate for the building as he was selling the property. He had been advised previously by the landlord to contact the freeholder but the freeholder had advised him to contact the landlord. This Service has not seen these communications.
Landlord communication logs show the landlord provided the resident with building control sign off and insurance documents on 2 October 2020 and advised him to contact the agent for the FRA.
The resident contacted the landlord on 4 June 2021 and stated he would be submitting a formal complaint about “the handling and lack of communication received throughout the process” of him trying to sell the property. He said there had been “months of miscommunication…regarding the difficulties with obtaining an EWS1 form” and that he had been caused stress throughout the process which had now been ongoing for over a year. The landlord acknowledged the email on the same day.
The landlord provided a stage one complaint response on 15 June 2021 which stated:
1. The landlord had not made clear in its advert for the sale of the resident’s property that it did not have a valid EWS1 certificate available for the building.
2. An EWS1 form was issued but this did not provide the full correct details of the resident’s block and therefore had not been accepted by mortgage lenders.
3. The landlord could not explain why the full correct information was not on the form and had contacted the freeholder to ask if the document could be amended.
4. If the sale of the resident’s property could not proceed due to the lack of an EWS1 form, the landlord would refund his valuation costs, management pack admin fee, and the buyer’s reservation fee.
5. As the delay was caused by the freeholder, the landlord was “unable to offer any compensation” but would contact the freeholder to try and “speed this along”.
The landlord contacted the freeholder appointed managing agent on 15 June 2021 and asked that it provide an EWS1 form with the full correct address “as a matter of urgency”.
The resident replied to the landlord on 16 June 2021 and said:
1. He remained dissatisfied.
2. The landlord had not acknowledged or taken accountability for the lack of communication on the requirement to have an EWS1 to process the sale.
3. The resident’s block was not included in combustibility testing that was carried out on the adjoining block on the plot.
4. If the EWS1 form was not able to be amended to include the resident’s block, the landlord should ensure testing was carried out on the resident’s block so a new EWS1 form could be issued.
The landlord acknowledged the resident’s complaint escalation request on 16 June 2021.
On 22 June 2021 the landlord emailed the resident and asked the resident to confirm why the lender wanted an EWS1 for the block as it was under 18 metres high. It stated that its website stated “not every building will require an EWS1 form – only those with some form of combustible material, making them unsafe… For buildings…which are below the 18-metre threshold there must be a ‘specific concern’ for an EWS1 to be required”. The landlord also contacted the managing agent to ask whether any inspections had taken place on the block that could confirm the construction materials.
On 19 July 2021 this Service contacted the landlord and asked it to investigate the resident’s complaint. The landlord contacted the resident on 22 July 2021 and stated that it had raised a stage one complaint as it understood that the resident wanted it to carry out intrusive fire and combustibility testing on the external wall cladding on the building and provide an EWS1 form.
The landlord contacted the resident on 23 June 2021 and stated that in June 2020, when the resident’s property was first listed for sale, the landlord had asked him to check its website to confirm whether the sale would be “affected by the current cladding issues” and to check with the mortgage lender to check whether the property was affected. The landlord stated that it appreciated the difficulties residents were experiencing in selling their properties. However, it stated that the RICS stated that EWS1’s were the responsibility of a building’s owner and the freeholder was therefore responsible for ordering the necessary inspections.
On 29 July 2021 the landlord provided a “stage one complaint decision” stating:
1. The freeholder had advised the landlord that it had followed government advice on the requirement to provide an EWS1 form and that only buildings over 18 metres high required this.
2. As the building was below 18 metres an EWS1 form was not required.
3. RICS guidance had recently changed in relation to EWS1 forms and these were now required for buildings under 18 metres in height “where certain criteria are met”.
4. The resident’s block was “an independent stand-alone block with no shared fire escape access with the [adjoining] block” and therefore the information that residents had been given so far was accurate.
5. The landlord acknowledged that communication could have been clearer as updates were issued under the name of the resident’s block when in fact, they only pertained to actions carried out on the adjoining block. This may have caused confusion for occupants of the resident’s block.
6. The freeholder had confirmed that it would now issue separate communications for each block.
7. The freeholder was “working towards” carrying out intrusive testing to the exterior of the resident’s block and they “anticipated” this would be complete by the end of August 2021.
8. The freeholder would be able to provide answers to the four questions posed by the buyer’s mortgage lender when the survey was completed.
9. The landlord did not uphold the complaint as the freeholder “have acted correctly by following government guidance and it is only since guidance has changed that they are now taking the next steps to obtain an EWS1 form”.
The resident replied to the landlord on 30 July 2021 and stated he was happy with the complaint outcome as it provided a timeline of testing.
On 25 October 2021 the resident contacted the landlord and advised that he, along with others in the building, was unable to sell his property due to “a failure of [the landlord] and [the freeholder] in obtaining the correct Fire Risk Assessment testing (both intrusive and combustibility testing) required by lenders”. The resident said that he would not be paying his service charge to the landlord as it was in breach of the terms of service he had agreed with the landlord when he bought the property. He stated that “a proportion of the service charges will contribute towards ‘building monitoring’, ‘fire risk assessment’ and ‘fire equipment servicing/ maintenance” which were not carried out.
On 17 November 2021 the resident’s representative requested that the landlord buy back the resident’s 25% share of the property.
On 17 November 2021 the resident’s representative advised the landlord that the freeholder had told her that it did not plan on carrying out combustibility testing in order that it could obtain an EWS1 form. This Service has not seen this communication. The representative stated:
1. The resident was “under extreme financial duress and could no longer afford the upkeep of the property”.
2. Subletting was not viable as he needed the equity out of his share of the property.
3. The resident was a keyworker and lived away from the property.
On 19 November 2021 the landlord refused the resident’s buy-back request. It stated that it would only buy back a property when a property was unmortgageable and where remedial works would require more than 12 months to complete and cannot be reasonably undertaken whilst the property was occupied – this did not apply to residents in the block. The resident could however sublet the property.
The landlord wrote to all residents in the building in December 2021 and stated that remedial “intrusive” works to the brickwork had been carried on 5 November 2021 but that planned works to the render had been postponed due to high winds. This Service has not seen evidence of what the testing comprised. The landlord would update residents as soon as a revised date was arranged. Following the works the contractor would submit findings to the landlord to enable it to order a revised FRA. The landlord stated in this communication that as the building was below 18m in height it did not require an EWS1 certificate.
The resident contacted the landlord on 9 December 2021 and said he wished to complain due to “the continual failure to sell my property”.
On 10 December 2021 the landlord advised that the resident’s complaint regarding his “request to buy-back your property” had been escalated to stage two of the complaint process and would provide a response by 11 January 2022. The resident’s representative replied to the landlord stating “Whilst we agree that the complaint will probably need escalating, it is of some concern that you seem to have decided to bypass Stage One of your own complaints procedure”. The representative also stated that the complaint also related to fire safety testing on the property.
The landlord replied to the resident’s representative on 10 December 2021 and said:
1. It had previously provided a stage one complaint response in relation to the outstanding EWS1 in June 2021.
2. It had also provided a response to the resident’s request to buy-back his property on 19 November 2021.
3. As the current complaint related to both of these issues, it had been escalated to stage two.
The resident’s representative contacted the landlord on 13 December 2021 and stated:
1. It had been six months since the landlord’s stage one complaint response and no further progress had been made to resolve the complaint.
2. A stage two complaint had been raised but the resident had not been contacted within two days in line with the landlord’s complaint procedure.
3. The landlord’s stage one complaint response placed responsibility for “the lack of adequate Fire Testing” on the freeholder, but the resident’s contract was with the landlord and the freeholder denied that liability rested with them.
4. In June 2021 the resident contacted the freeholder who “continually stated that although they are not liable, the required fire safety testing would be carried out on [the] building by the end of 2021”. This had not happened and therefore residents did not have adequate fire safety testing and could not sell their properties.
5. The landlord and the freeholder had been aware that an EWS1 form was needed for the building and had said they would carry out the required tests. However they now said an EWS1 was not required due to the building being below 18 metres high.
6. The landlord had provided no independent confirmation that the building was below 18 metres high. The building also formed part of an adjoining plot which was above 18 metres.
7. The building remained untested for fire safety and because of this it was “unmortgageable and unsellable”. Four separate mortgage applications on the property had failed and the resident had lost the buyer for his property as a result.
8. Unless the landlord guaranteed that it would obtain an EWS1 form, it must buy-back the resident’s share of the property.
9. The resident and his partner worked in another city and needed the equity from the property in order to relocate. The stress of the situation had taken a toll on the resident’s mental health and finances.
In their email of 13 December 2021 the resident’s representative referenced a number of communications from the landlord and freeholder which demonstrated that:
1. On 4 September 2020 the landlord confirmed that lenders required an EWS1 form and that the freeholder was responsible for providing this.
2. On 16 December 2020 the landlord stated the combustibility test for the building (and the adjoining building on the plot) would be completed by January 2021. This Service requested a copy of this document but the landlord does not have a copy on file.
3. The freeholder stated on 21 July 2021 that the intrusive fire testing and combustibility testing would be completed by December 2021.
4. The landlord provided an EWS1 form to a mortgage provider in July 2021 but it was rejected as it did not specify that it applied to the resident’s building as well as the adjoining building on the plot.
5. The freeholder confirmed on 27 July 2021 that it was still going ahead with intrusive fire testing and combustibility testing.
6. On 2 September 2021 the freeholder advised that the intrusive fire testing was delayed and would take place within weeks.
7. The freeholder stated on 17 November 2021 that whilst mortgage lenders required an EWS1 form, the freeholder was not liable to provide one and that if the landlord wanted one carrying out it would have to instruct the freeholder to do so.
8. The landlord’s resales team stated on 17 November 2021 that the building would remain unmortgageable until remedial works were complete and an EWS1 form issued.
The landlord provided a “final” stage two response to the resident’s complaint on 6 January 2022. This stated:
1. The landlord’s voluntary buyback policy had been followed. Buyback would only be considered when “the remedial works require more than 12 months to complete and cannot be reasonably undertaken whilst the property is occupied.” – this did not apply in this case.
2. The resident’s “financial difficulties alone are not considered exceptional circumstances”.
3. The landlord was not the freeholder and therefore was not responsible for the external wall systems, the FRA or obtaining an EWS1. The freeholder was complying with government advice and was “inspecting the external wall system of your building” to determine whether remedial work was required.
4. An EWS1 was not required as the height of the block was 16.57m.
5. The landlord would keep residents updated regarding the progress of the inspections.
6. The landlord was aware that the resident had previously advised he could not consider subletting, if his circumstances changed, he could contact the landlord’s subletting team for assistance.
On 10 February 2022 the resident emailed the landlord and asked that it confirm to his buyer’s mortgage provider that external surveys had been carried out on the wall in December 2021 and January 2022 and that it was awaiting the results of the survey. He also asked that it confirm that the building “compromises of masonry brickwork and is under 18m”.
The landlord wrote to the resident on 11 February 2022 and stated that “in line with Government guidelines” an external wall inspection was carried out by the owner of the building in December 2021 and January 2022 and that findings were expected to be available eight weeks after the inspections.
On 11 February 2022 the landlord stated in an email to the resident that “we are of the understanding that mortgage providers are only accepting EWS1s or confirmation that an EWS assessment has been completed with no remedials required”.
The resident’s representative contacted the landlord on 11 February 2022 and said they wanted to make a formal complaint. They stated:
1. They had made two previous formal complaints about “the lack of fire safety and relevant documentation” that had caused them to be unable to sell the property since 2020.
2. The sale of the property had fallen through on four occasions as no mortgage could be granted on the property without the proper fire safety documentation.
3. In December 2021 the landlord told residents that it would be concluding testing “shortly thereafter” and that the fire engineers could then review the contents and produce a fire report in line with government guidelines. This was due to be completed by January 2022.
4. The resident had therefore placed the property back on the market in January 2022 but was then advised that the report would not be ready for a further four weeks and that the landlord would then require another four weeks to “assess” the report. The landlord had therefore “mismanaged their expectations”.
5. They wanted the following outcomes:
  1. The landlord to work with the freeholder to obtain the outstanding report as soon as possible.
  2. The full report or an interim document to be provided to the resident stating that the building was below 18 metres and contained no cladding, no remedial works were required, and no costs would be passed on the leaseholders. This information had already been provided to the resident verbally by the landlord and freeholder.
  3. The resident to be kept updated on progress.
Internal landlord emails between 11 February and 16 February 2022 demonstrate that the landlord was unsure whether the representative’s email related to the previous stage two complaint or constituted a new stage one complaint. It determined that it was a new stage one complaint as it related to a recent update provided by the freeholder and not to the landlord’s stage two response to the resident’s complaint about his request for the landlord to buy-back his property.
The resident contacted the landlord on 14 February 2022 asking that it provide a response to the following questions asked by his buyer’s mortgage provider:
1. “Has a review of the building, including the external walls, in relation to fire safety been carried out in accordance with the latest Government advice?”
2. “Is any remedial work required…following the review?”
3. If remedial work is required, “has the work commenced/been completed?”
4. “Will any costs be passed on to the leaseholders?”
On 18 February 2022 the landlord’s fire safety manager emailed the resident and stated:
1. The external wall survey had taken place in November 2021 and the render survey in January 2022.
2. An official report would be released “shortly” and the landlord was confident that no remedial work would be required “as similar buildings have been tested with the same building materials, and have passed with no works required”.
3. Costs would not be passed on to leaseholders.
On 28 February 2022 the landlord provided its stage one response to the resident’s complaint. The response stated:
1. The landlord was not the freeholder of the building and therefore was not responsible for external wall testing.
2. The freeholder had carried out testing and had regularly updated residents on progress.
3. In December 2021 the freeholder had advised it aimed to produce and complete the report and FRA in January 2022 but that as the building was under 18m an EWS1 form was not required.
4. In February 2022 the freeholder’s update stated that it would take four weeks for its contractor to compile its report and a further four weeks for the fire safety engineer to assess the report.
5. The landlord had asked the freeholder for an update but it was unable to provide one until it received the fire safety report. It expected to receive this by the end of March 2022.
6. The landlord’s fire safety manager had written to the resident on 14 February and 18 February 2022 answering the questions asked by the buyer’s mortgage lender but was unable to advise when the remedial works would commence and whether costs would be passed on to leaseholders.
7. The resident’s complaint was not upheld.
The resident contacted the landlord on 1 March 2022. He stated that the stage one complaint response provided no assistance to the situation he was in. He asked the landlord to liaise with the freeholder’s fire engineer to confirm whether the report had been received. On the same day the landlord contacted the building’s agent and asked if it could confirm receipt of the report and asked, if the report was conclusive that no remedial works were required, it could share this with the resident “in the interests of transparency”.
On 2 March 2022 the landlord contacted the freeholder and asked if it could confirm that the report had been received from the contractor and was being assessed by the fire engineer. The freeholder confirmed that this was the case and that the process would take until the end of March.
The resident’s representative contacted the landlord on 3 March 2022 and said that they understood that the fire engineer would need to review the fire safety report in order to implement new government guidance PAS9980. However, the resident only required that the engineer answer the four questions asked by his buyer’s mortgage lender. She asked that the fire engineer provide answers to these questions. On the same day the landlord contacted the freeholder and asked if it was now able to advise whether remedial works would be required or not.
On 4 March 2022 the landlord contacted the resident and confirmed it had asked the freeholder for confirmation of the contents of the report. The staff member stated “I feel I have done all I can as I have chased the report and asked if any findings can shared and therefore will be closing your complaint”.
On 4 May 2022 the resident’s representative contacted the landlord and asked that the resident’s rent and service charges be waived as the resident was unable to sell the property.
On 5 May 2022 the resident’s representative contacted the landlord and stated the resident had been unable to sell his property for two years and was unable to “afford the financial upkeep on two properties” having had to move elsewhere for work. He needed “financial relief from having to pay the rent and service charges (as well as a mortgage)”. An internal landlord email dated 5 May 2022 demonstrated that the landlord had received this email but this Service has not seen evidence that it was responded to.
On 14 July 2022 the resident’s representative contacted the agent and requested that it confirm that the process of obtaining expert reports and carrying out remedial works would take no longer than 12 months. The representative chased a response on 19 July 2022. This Service has seen no evidence that the resident or his representative received a response.
On 13 December 2022 this Service wrote to the landlord and advised that we would be investigating the resident’s complaint and that he had advised the Service that the following issues remained outstanding:
1. The landlord had still not provided answers to the four questions asked by the buyer’s mortgage lender, or a copy of the FRA.
2. It had identified that some remedial work to the building was required but had not said what this entailed.
3. The resident incurred extra financial costs in placing the property on the rental market.
At the time of writing this report the resident states they have not been provided with any documentation regarding the fire safety compliance of the building and therefore still cannot sell the property.
This Service has requested information relating to the cladding and FRA but have been advised by the landlord that it does not hold information relating to “FRAs for properties we are not responsible for”.

Assessment and findings

Scope of the investigation

Paragraph 41 (b) of the Scheme states that the Ombudsman cannot consider complaints which, in the Ombudsman’s opinion concern matters which do not relate to the actions or omissions of a member of the Scheme. The freeholder and managing agent of the building are not members of the Scheme and therefore this Service does not have jurisdiction to investigate their actions. This assessment therefore focuses on the actions of the landlord.

The landlord’s response to the resident’s request for information about the cladding and on the block he owned a shared-ownership property in, to enable him to complete the sale of the property

This Service appreciates that the resident is in an extremely difficult situation through no fault of his own. Until he is provided with certification regarding the cladding material, the leaseholder is effectively stuck as he is unable to sell the property as lenders will not lend on it.
It is also acknowledged that not all properties require EWS1 certification and, as the property in question is under 18 metres high, this may the case here. The fact remains however that as mortgage lenders are insisting on certification before agreeing mortgages, the resident is stuck.
Whether the building requires an EWS1 form is dependent on whether it has cladding over more than 25% of its exterior, or two or more panels made of specified materials. The landlord has not made clear to the resident, or to this Service, whether either of these conditions apply. Such information impacts on the health and safety of those in a contractual relationship with the landlord and therefore it is not acceptable that the landlord in unable to provide such vital and basic information on the property assets that it is a contracted for.
Because the landlord is not the freeholder of the building it is unable to obtain an EWS1 form itself, the freeholder must do this. The Ombudsman does consider however that the landlord has a responsibility in respect of the RICS and government guidance. This Service considers that landlords must be proactive in their communication with the freeholder, and ensure they have regular communication so that they are able to regularly update their residents on the long-term plans of the freeholder.
It is important to point out that the resident’s relationship is with the landlord, not the owner of the building. It was the landlord’s responsibility to pass on the residents’ queries to the freeholder and to chase the freeholder for updates, if it did not provide the information requested, in a timely manner. This was a failing by the landlord.
In this case, the landlord has not communicated clearly with the resident. Initially, the landlord sent joint communications to occupants of the resident’s block and the adjoining block. This was inappropriate as the adjoining block was subject to different legislator requirements (being over 18 metres tall), timeframes for testing, and had already been issued an EWS1. Therefore its occupants were not subject to the same problems with selling their properties. The landlord acknowledged this failing in its first stage two complaint response in July 2021 and began sending separate communications. Nonetheless the landlord’s early communications caused confusion, upset, and raised the expectations of the resident.
Similarly the responsibility for carrying out FRAs also belongs to the freeholder but the landlord has a responsibility to ensure that it can demonstrate compliance with fire safety legislation. At a minimum this Service would expect the landlord to proactively liaise with the managing agent and freeholder to ensure such assessments were carried out and obtain a copy of such documentation. In this case the landlord has stated that it last requested the FRA in 2022. This matter is referred to in our assessment of the landlord’s record keeping.
The landlord, in response to information requests from this Service, has stated that “the issue of compliance is currently under review” but that it “was not required to ask for any other compliance information” from the freeholder.
The landlord has also stated that the building’s managing agents had “recently confirmed to our Team that updates on remediation/building safety are provided to the Neighbourhood Team on a regular basis”. This Service has seen no evidence of this. Nor have we seen any evidence that regular updates have been provided to residents of the building.
The landlord’s fire safety policy states that the landlord would carry out a “comprehensive inspection programme of external wall systems”. This is in line with government guidance. The landlord has not included on its programme, properties that it does not own. This Service considers that whilst the landlord is not responsible for carrying out inspections on properties it does not own, it is responsible for ensuring that its freeholder partner does carry out these inspections. Therefore, this Service considers that the landlord should include such properties on its programme to allow active monitoring or create a separate programme for monitoring such properties.
By the middle of 2019, it was widely known that many lenders were refusing to lend on properties without EWS1 certification. Therefore, this Service would have expected landlords to begin communications with freeholders around this time. This Service has not seen any evidence in this case to demonstrate that the landlord had communicated with the freeholder with regards to its long-term plans until after it was contacted by the resident. It is clear that both the landlord and freeholder had not agreed any clear process for responding to leaseholder queries regarding cladding as each party signposted the resident to the other is response to the resident’s early communication. This caused the resident confusion and created an impression that the landlord was “passing the buck”.
The landlord has failed to proactively liaise with the freeholder to obtain a clear road map of when testing would be carried out and communicate these timescales with the resident and other building occupants. When the freeholder failed to adhere to deadlines it had communicated, the landlord does not appear to have applied sufficient pressure to ensure that future timeframes were achieved. Ultimately the resident was failed as the commitments made were not honoured.
It is concerning to this Service that the landlord’s sum response to the resident’s concerns around the safety of the building is that it is not their responsibility and it is understandable that the resident has been left to feel that the landlord is unconcerned about their predicament. The landlord has shown very little empathy for the resident’s difficult circumstances and has offered no support except advice should he wish to sublet the property.
The landlord has been unable to provide this Service with:
1. Confirmation of the height of the building
2. Confirmation of the construction of the building
3. Whether it has complied with its obligations in relation to FRAs.
Instead, the landlord has advised this Service that, as it is not the freeholder, it does not hold this information. This explanation is thoroughly inadequate and ignores the landlord’s responsibilities towards its leaseholders.
At the absolute minimum this Service would expect that the landlord would be able to demonstrate compliance with fundamental safety legislation and it is extremely concern that in this case the landlord cannot.
Overall, whilst the landlord is not responsible for carrying out FRAs or obtaining EWS1 certification for this block as it is not the freeholder, this does not absolve it of all responsibility in relation to the health and safety of its residents. The landlord is responsible for effective liaison between its residents and the freeholder and for monitoring that the freeholder has complied with any relevant statutory legislation in relation to the landlord’s tenants and leaseholders. The landlord’s poor communication, liaison, and oversight of this issue has caused the resident significant distress, inconvenience and financial hardship. Most importantly, the landlord is unable to demonstrate that a building in which it holds an interest and in which it’s shared-owner lives, is compliant with health and safety regulations. Therefore, there has been severe maladministration.

The landlord’s response to the resident’s request that it buy-back his shared ownership property.

It is important to state that there is no legal obligation for the landlord to buy-back the resident’s property and that any buy-back is agreed at the landlord’s discretion. The landlord’s decision whether to buy-back a property should however be made in accordance with its buy-back policy.
The Ombudsman’s Spotlight Report on cladding complaints states that whilst it is not the Ombudsman’s expectation that landlords automatically offer options to buy-back properties “we do expect landlords to have considered whether this is an option they can accommodate in exceptional circumstances. Landlords should have considered what those exceptional circumstances may be, adopting a holistic and empathetic approach to the range of circumstances that may impact residents.”
The landlord has demonstrated that it had considered the circumstances in which it will buy-back properties. It states its position on its website that exceptional circumstances are ones such as buildings where residents must move out while works are carried out and this will take 12 months or more to complete or where there was financial hardship coupled with exceptional vulnerability.
This Service considers that, by stating that financial hardship alone does not constitute sufficient grounds to qualify for a buy-back, the landlord has fettered its own ability to fully consider the circumstances of a resident. An order has been made in this regard.
However, the landlord’s handling of the resident’s request that it buy-back the property was not fair or reasonable. This Service has seen no evidence that the landlord gave proper consideration to the resident’s application or his personal circumstances. The resident was advised that, as he would not be required to move out of the property for 12 months, he was not eligible for the buy-back scheme. The landlord failed to advise the resident that, even if this particular criteria was not met, its policy allowed it to buy back a property if there were “exceptional” circumstances.
Despite the resident mentioning the impact the situation was having on his mental health, the landlord failed to make any enquires of the resident about whether he had any vulnerabilities which may have impacted his eligibility. This was a failing.
This Service considers that in order that the landlord’s buy-back procedure be fair, a process should be implemented whereby applicants are asked specifically about issues that may impact their application and mean that their case is considered “exceptional”. An order has been made accordingly.
It is understood by this Service that the resident’s preferred resolution in this case would be for the landlord to buy-back the property allowing them to use the equity and move on. This Service cannot order the landlord to buy the property back however an order has been made for the landlord to re-consider the resident’s application.
Overall, the landlord did not apply its buy-back policy fairly or reasonably in this case. This impacted the resident as it meant his personal circumstances were not considered and he continued to pay rent, mortgage and service charge costs the property. There was therefore maladministration in the landlord’s handling of the resident’s buy-back application.

The landlord’s complaint handling

The resident raised his first formal complaint in June 2021 stating that he was unable to sell his property due to the absence of an EWS1 form. The landlord provided its response within the timeframe specified in its policy and acknowledged some failings in its communication about the EWS1 form and agreed to refund resident’s selling fees. This was reasonable. The landlord however stated that it was unable to offer any compensation as the delays were caused by the freeholder.
On 16 June 2021 the resident requested that his complaint be escalated to stage two of the complaint process. No stage two response was provided.
On 19 July 2021 this Service contacted the landlord and it raised another stage one complaint. This Service considers that, as we had contacted the landlord about the same issues previously raised, it would have been more appropriate to have provided a stage two complaint response. By raising another stage one complaint the landlord slowed its complaint process, delayed the resident’s right to review and therefore his access to the Ombudsman Service. This was a failing.
The landlord’s second stage one complaint response, in July 2021, caused further confusion to the resident. The landlord provided conflicting information both describing the block as “freestanding” and “adjoining”, and stated that buildings under 18 metres high only required EWS1 forms “where certain criteria are met” – yet failed to explain what those criteria were and why they did not apply in this case. This was unsatisfactory.
The landlord’s second stage one complaint response acknowledged that issuing joint communications to the resident’s block and the adjoining block was a failing and agreed to issue separate communications in future. Despite acknowledging the failing, the landlord did not uphold the complaint. This Service would contend that in acknowledging a failing which had a detriment to the resident, the complaint should have been upheld. This was a failing.
In December 2021 the resident raised a further complaint. The landlord decided to record this as a stage two complaint as the substantive issues of complaint were the same as raised in previous complaints. This Service considers that this was the correct action to avoid further undue delay in complaint handling.
The landlord’s first stage two complaint response was issued in January 2022, the landlord stated this was its ‘final’ response. It stated that, as the landlord was not the freeholder, it was not responsible for the external walls, fire risk assessments, or obtaining an EWS1 form. This Service considers that, whilst the landlord is not responsible for carrying out such testing, it still holds a responsibility for ensuring that any blocks which contain properties it holds a interest in are compliant with statutory health and safety requirements. The suggestion given by the landlord in its response is that it is excused from any responsibilities to its resident, this is not the case and the suggestion is misleading.
The landlord also stated in its first stage two complaint response that the freeholder was complying with government advice. This Service cannot see how the landlord could come to such a conclusion when it has acknowledged that it does not hold information regarding the cladding materials and has not been provided with a FRA report.
In February 2022 the resident raised a further complaint regarding the lack of fire safety and related documentation. This Service considers that the landlord should have directed the resident to contact the Ombudsman as it had already provided numerous responses to the same issue and was still unable to provide a resolution. Its failure to do so was unreasonable and again delayed the resident’s access to this Service.
In its final response letter the landlord stated that it expected to receive the fire safety report, commissioned by the freeholder, by the end of March 2022 but that until then it could not confirm when remedial works would commence or whether the costs of work would be passed on to leaseholders. This statement is inconsistent with the message provided by the landlord just ten days earlier that remedial work was unlikely to be required and costs would not be passed on to leaseholders. Such mixed messaging demonstrated that the landlord itself seemingly did not understand its position.
Finally, in March 2022 the landlord advised the resident that it was closing its complaint as it had done all that it could do by requesting the fire safety report. The Ombudsman’s Complaint Handling Code (the Code) states that a complaint response should be sent when the outcome is known, but that outstanding actions must continue to be tracked and regular updates provided to the resident. The landlord failed to outline what actions it would carry out to ensure that it obtained a copy of the FRA and how it would communicate future updates to the resident. This was a failing.
In conclusion, in raising a number of different complaints about the same issue the landlord delayed the resident’s access to this Service. Its complaint responses provided conflicting and at times incorrect advice, and failed to sufficiently display empathy for the extremely difficult situation that the resident was in and the impact that this had on him. The landlord’s complaint handling failed to resolve the substantive issue of complaint as the FRA remains outstanding and therefore the resident still cannot sell his property. No redress was provided by the landlord and therefore an order has been made in this regard.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was:
1. Severe maladministration in the landlord’s response to the resident’s request for information about the cladding and on the block he owned a shared-ownership property in, to enable him to complete the sale of the property.
2. Maladministration in the landlord’s response to the resident’s request that it buy-back his shared ownership property.
3. Maladministration in the landlord’s complaint handling.

Reasons

Concerningly, the landlord is unable to demonstrate whether the block in which one of its properties is situation, complies with health and safety legislation and guidance. It has also failed to communicate effectively with the resident and has failed to liaise effectively with the freeholder. The landlord’s actions and omissions have caused the resident distress, inconvenience and time and trouble. The landlord has been unable to provide this Service with basic information with regards to the block in which its asset is situated and it’s leaseholder’s reside. The landlord’s justification that it was not the freeholder and therefore free of responsibility to hold such information, is unsatisfactory.
The landlord has failed to demonstrate that it fully considered the resident’s circumstances when assessing his buy-back application. This is in part due to the inadequate buy-back procedure which does not facilitate fair and consistent application.
The landlord, in raising multiple complaints regarding the same issue, delayed the resident’s access to this Service. It also provided conflicting advice, failed to display empathy, and failed to provide resolution or redress to the resident’s concerns.

Orders

Within four weeks of this report a senior officer of the landlord to apologise to the resident.
Within four weeks of this report the landlord consider again the resident’s buy-back application. It must demonstrate that it has fully considered the resident’s circumstances including their mental wellbeing.
Within four weeks of this report the landlord is to pay the resident £5,750 comprising:
1. £750 for failing to communicate effectively;
2. £1,500 for failing to monitor the compliance of the property with health and safety legislation and guidance;
3. £1,000 for distress and inconvenience;
4. £750 for failing to fully consider the resident’s circumstances in handling his buy-back application;
5. £750 for complaint handling failures;
6. £1,000 for record keeping failures.
The landlord is ordered within four weeks of the date of this report to provide a clear timetable to the resident concerning:
1. The inspection of the building to demonstrate compliance with health and safety legislation and guidance.
2. Whether an EWS1 form is required for the building.
3. Whether the cost of any remedial works will be passed on to leaseholders.
4. Provision of form EWS1.

The landlord must carry out a review of its buy-back procedure to ensure:
1. It does not fetter its ability to consider extreme financial hardship as a ground for buy-back where appropriate.
2. All applications are considered fairly against the same criteria. The landlord should consider introducing an application form which asks applicants about:
  1. Any vulnerabilities
  2. Any extenuating circumstances.
3. It provides applicants with a full explanation if their application is not successful.
4. Applicants are signposted for further support where required.
5. The landlord must report to the Ombudsman and to the governing body, the outcome of this review along with any improvements it intends to make to its policy and practice, within eight weeks of the date of this report.