Metropolitan Housing Trust Limited (202100394)

REPORT

COMPLAINT 202100394

Metropolitan Housing Trust Limited

28 January 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 certificate;
2. the related complaint.

Background and summary of events

Background

The resident is a leaseholder who holds a lease dated 10 September 2018. The property is a one-bedroom flat within a six-storey block.
The landlord has a repairs guide for leaseholders that confirms that it is responsible for arranging repairs to the structure and outside of leasehold properties, including to outside walls.
The landlord has a corporate fire safety procedure that shows it is required to carry out risk assessments to premises that it owns. It is obliged to conduct risk assessments every year on high-risk buildings that are six or more storeys high and to create an action plan of immediate, short-term, medium-term, and long-term actions.
The government issued ‘Advice Note 14’ 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.
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 has an EWS1 information page on its website that shows that:
1. EWS1 forms should be required where there is cladding on a six-storey building;
2. it is conducting intrusive inspections of buildings as part of the process to make them safe and issue EWS1 certificates but, given the large quantity of its housing stock, it prioritises this based on ‘height, type and combination of materials used in the external wall system, the proportion of a building that has cladding, whether it has balconies, and the building occupancy’;
3. it is ‘committed to providing regular updates to residents in buildings that are being inspected, and to answering questions from any residents’;
4. it was not granting permission for ‘privately organised inspections’;
5. it could not assist leaseholders who were facing increased mortgage costs due to fixed-rate mortgage deals expiring and recommends that they speak to their mortgage provider about support.
The landlord has a complaints policy that sets out a two-stage complaints procedure with responses required within 10 working days (at stage one) and 20 working days (at stage two). Its ‘internal process’ complaints document shows that it can extend response times by up to 30 days in total in agreement with the resident.
The landlord has a compensation policy that allows it to make discretionary awards for service failures such as poor complaint handling, delays and failure to meet response times. Its related tariff of discretionary compensation payments document shows that it can award up to £150 for poor complaint handling and up to £350 for service failure and time and trouble caused to a resident.

Summary of Events

The landlord completed fire risk assessments of the resident’s block on 24 March 2018 and 7 March 2019 that both set out that the block had six floors and the fire risk was tolerable with no major additional controls required.
The landlord noted on 2 October 2020 that the resident had requested a copy of the EWS1 certificate for the block to be provided within seven days. She added on the same date that this was needed to proceed with a re-mortgage.
The landlord replied on 2 October 2020 – it set out that it had over 4,000 residential buildings to inspect so was taking ‘a risk-based approach that takes into account the information held on our records and any previous surveys’. It added that its focus was on higher risk blocks.
The resident asked the landlord on 2 October 2020 where this left her, what it could supply for her and why forms were not provided given she knew that the landlord had conducted an inspection of her block.
The resident wrote to the landlord on 5 October 2020. She asked it to provide a letter for her that a neighbour had been given in the past as she was of the view this may resolve the issue (this letter was dated 20 September 2019 and said that the block was below 18 metres in height with no aluminium composite material cladding present so the requirements of ‘advice note 14’ had been met).
The landlord issued a stage one complaint response on 10 October 2020 (having logged the resident’s concerns as a complaint on 5 October 2020). It concluded that:
1. the requirement for an EWS1 form was relatively new, having been in place since December 2019;
2. there were a limited number of companies available who could undertake the works required to demonstrate compliance with the government’s advice note;
3. the update to the Advice Note in January 2020 had removed the threshold for investigation so lenders now required EWS1 assessments for many low-rise buildings;
4. it would continue to update residents and it signposted the resident for further advice on re-mortgaging.
The resident asked the landlord on 11 October 2020 where her block was in the prioritisation order. The landlord advised on 12 October 2020 that, given it had been unable to resolve the matter, it would escalate the complaint to the final stage of its complaints process.
The landlord wrote to a neighbour of the resident on 29 October 2020. It said that it could not comment on previous letters except that incorrect correspondence had been issued in the past as the block was over 18 metres high. The resident asked the landlord on the same date for this to be added to her complaint due to concerns about inconsistent information the landlord had offered. She asked if her block would be prioritised given it now fitted the criteria for a proper review.
The landlord acknowledged the resident’s correspondence on 5 November 2020, adding that it was ‘very disappointed to hear the building is over 18m which is a safety hazard for yourself and other residents’ and was chasing progress on the complaint.
The resident replied to the landlord on 5 November 2020. She asked for confirmation that the block was over 18 metres high, if this meant the EWS1 survey would be prioritised, why there had been a delay, if the landlord could give the residents and the estate management company permission to instruct works and if her block could be prioritised given the nextdoor building had fire hazards flagged on its survey.
The landlord responded to the resident on 11 November 2020. It advised that:
1. the building was below 18 metres high (‘measured from the floor level of the top floor to the ground level of the lowest side of the building’);
2. the block was scheduled to have its intrusive inspection during 2021/22 as it was taking a risk-based approach to its programme of investigations and remedial works;
3. consultants were instructed through its solicitors to ensure it had an independent expert view should it need to pursue the original developer through a legal process so it was usually reluctant to allow residents to arrange their own inspections but it asked for details of the quote that they had obtained to consider this further;
4. it did not believe that it owned the nextdoor building but it would look into this further.
The resident replied to the landlord on 11 November 2020. She provided some details of the contractor that residents and the estate management company had liaised with. She explained that many residents in the block were key workers who would experience financial difficulties if they could not re-mortgage onto fixed rate deals.
The resident chased a response on 18 November 2020 and 25 November 2020, confirming that the estate management company had provided the landlord with more details about the private quotes they had obtained. The landlord advised during late November-early December 2020 that the request had been passed to the director of its safer buildings team and its legal services team.
The landlord wrote to the resident on 9 December 2020. It advised that it was unable to grant permission for residents to arrange their own inspections to ensure consistency across its buildings and that it hoped to be able to provide an update on timescales before 31 March 2021.
The resident asked the landlord on 17 December 2020 for a definite commitment for the planned 2021/22 EWS1 survey and chased this on 18 January 2021.
The landlord advised the resident on 19 January 2021 that the ‘intrusive survey program for the first quarter of next financial year’ was being discussed.
A fire risk assessment report for the block was produced on 12 February 2021 – this demonstrated that:
1. the block had six storeys and was marked as being 18 metres and over;
2. the risk was tolerable with no major additional controls required;
3. ‘the whole building is clad in panels’ and it was unclear ‘how these panels are attached or if they are compliant in attachment and material’ but the building was ‘of non-combustible construction’;
4. there was ‘adequate building compartmentation’ in place with all fire doors in a satisfactory condition and suitable means of escape;
5. a long-term action (to be completed by August 2021) was recommended for correct fire action notices to be installed – the landlord has since noted that this was the responsibility of the managing agent;
6. a long-term action (to be completed by February 2022) was recommended for further investigation of the building façade – this was cancelled on 18 February 2021 on the grounds that the landlord had a programme of assessments across its portfolio to address the issue.
The resident asked the landlord for an update on 8 March 2021. The landlord replied on 9 March 2021, repeating the same information it had previously offered about its risk-based approach to the inspection programme. It said it had prioritised 40 blocks over 18 metres high and would focus on blocks over 11 metres high during the following year. It offered to assist residents wishing to sell, re-mortgage or staircase and to consider any requests for alternatives to EWS1 forms that lenders were willing to accept.
The resident explained to the landlord on 9 March 2021 that the lack of a timeframe had already caused problems and some residents were unable to re-mortgage given lenders were not accepting anything other than the EWS1 form. She said that they would escalate the matter and requested assurance at least that the inspection of the block would be done by April 2022.
The resident chased an answer on 17 March 2021, 22 March 2021 and 30 March 2021, asking if she could now escalate the complaint to this Service. The landlord replied during this period, on 22 March 2021, to advise that it could not offer any guarantee yet on the inspection timescale.
The landlord and resident exchanged emails on 30-31 March 2021 when the former said that it had escalated the complaint but the latter advised this had already been done in October-November 2020.
The landlord issued a final complaint response on 7 April 2021. It said it had spoken with the resident on 31 March 2021 and concluded as follows:
1. based on its visual survey, the block was 16 metres high;
2. it was taking a risk-based approach to its programme of inspections and remedial works and the resident’s block was due to have intrusive inspections during 2021/22;
3. if an initial investigation found potential non-compliance, it may only be able to offer a forecasted EWS1 form (not an actual EWS1 form) but more intrusive investigations (with a view to producing a favourable EWS1) would be conducted if the initial investigation indicated there was compliance;
4. it would be updating its ‘annual programme in April and communicating this to residents included in the programme in May’;
5. the decision on more intrusive investigations would be taken once it knew whether the external wall system was likely to be compliant;
6. its safer buildings and legal teams had liaised and decided that residents could not instruct their own surveyor to produce an EWS1 form as it needs to ‘take a consistent approach when carrying out all inspections in case the original developer would need to be pursued in future’;
7. the safer buildings team was doing what it could in the meantime, including supplying alternative paperwork and considering permitting properties to be let;
8. the stage one complaint investigation had been managed appropriately;
9. it apologised for delays and miscommunications with the stage two complaint for which it offered £75 compensation.
The landlord wrote to the resident’s MP on 21 April 2021. This included advice that it was ‘looking to provide some key details related to the building height and make up identified as part of our visual surveys’ and that this would ‘be shared with customers within the next 5 working days’.
The resident approached this Service during April-May 2021 on the grounds that:
1. the landlord’s actions meant she was unable to sell or re–mortgage her property;
2. the rate at which the landlord was surveying its properties meant that an EWS1 certificate may not be provided for decades;
3. the landlord had refused to put in writing verbal assurances it had given that a visual inspection found there was no aluminium composite material (ACM) cladding at the block;
4. banks had refused to accept that an EWS1 certificate was not required due to the height of the block but the landlord had refused leaseholders permission to engage their own surveyors for reasons of ‘legal consistency’.
The landlord updated the resident on 19 May 2021, advising that ‘we have a series of re-visits to make to undertake inspections within customer’s homes that we were unable to complete due to the fire engineers policy during the most recent lockdown period’ and that these had been ‘prioritised for May and June’ and they would ‘be able to clarify any new blocks added towards the end of June’.
The landlord updated the resident on 29 June 2021. It advised that the block had not yet been added to the list for intrusive inspection during 2021/22 albeit it could be added towards the end of the calendar year. It explained that it had prioritised return visits to key priority buildings and ‘more pressing apartment buildings’ up to the end of August 2021.
The resident advised this Service in January 2022 that no further update had been offered by the landlord to confirm that the intrusive inspection of the block will be conducted during 2021/22 or if it will instead be completed during 2022/23.

Assessment and findings

The Ombudsman’s Dispute Resolution Principles are:

Be fair
Put things right
Learn from outcomes

This Service will apply these principles when considering whether any redress is appropriate and proportionate for any maladministration or service failure identified.

EWS1 certificate

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?
When the resident initially approached the landlord in October 2020, 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 carry out any necessary remedial works.
It is clear from the landlord’s correspondence with the resident, in addition to information published on its website, that the landlord is taking steps to comply with the government’s guidance in respect of the building. The landlord has advised the resident on a few occasions that it is taking a risk-based approach to prioritise blocks for intrusive inspections and its website confirms that it is considering factors such as building height, cladding type and building occupancy. The Ombudsman recognises that the process to achieve compliance with government guidance is complicated and requires input from experts. Given this and the number of buildings owned by the landlord that require assessment, the Ombudsman is satisfied that the landlord has taken a rational approach to prioritising inspections.
However, there were occasions between October 2020 and May 2021 when the landlord provided contradictory information to the resident. It advised the resident in October 2020 that the block was over 18 metres high (which was in line with its subsequent fire risk assessment findings in February 2021) but also told her in November 2020 that it was under 18 metres (contrary to the February 2021 assessment). Given building height is a factor that the landlord confirmed it uses in its prioritisation decision-making, this will have caused uncertainty for the resident as to whether the landlord had correctly risk-assessed her block – this was unreasonable.
The landlord’s fire risk assessment report in February 2021 also indicated that it remained unaware of the cladding type at this point. Given the whole block is cladded and there is apparent uncertainty over the block height and cladding material, it is unclear how the landlord assessed the priority of the building in line with the EWS1 information page on its website and whether the information it used to do so was accurate.
Further, the landlord advised the resident in November 2020 that the block would have an intrusive inspection in 2021/22 and added in December 2020 that it would be able to provide further information on timescales by 31 March 2021. However, as recently as June 2021, it has been unable to offer any further details to the resident about when the inspection is likely to occur – the failure of the landlord to provide a clear plan to the resident and offer regular updates as its own procedures require was inappropriate.
There has also been conflicting advice on the inspection process itself. The landlord told the resident in November 2020 that the block would undergo an intrusive inspection during 2021/22. However, it then advised her in April 2021 that an initial inspection would be completed first (before the intrusive inspection) and that this would not lead to a EWS1 certificate being produced until a decision had been made on when to progress the block for the more intrusive inspection. Again, this will have caused uncertainty to the resident as to when she is likely to be able to obtain an EWS1 certificate and progress her re-mortgage application.
The landlord indicated to the resident in November 2020 that it would be able to consider an offer from residents for a privately arranged EWS1 survey but decided the following month that it was unable to accommodate such requests. This approach likely raised the resident’s expectations about the potential for progress but the decision not to permit the privately arranged survey was in line with the EWS1 information on the landlord’s website so was appropriate.
The landlord indicated in May 2021 that the timescales for inspection of the resident’s block had changed due to the impact of lockdown restrictions and re-visits to buildings it had already inspected (presumably to undertake remedial works). It was reasonable for the landlord to amend its plan given the impact of Covid-19 and the outcomes of earlier inspections but it is unclear if the landlord has reviewed whether it can offer the resident additional support in light of this delay.
In summary, the landlord’s risk-based approach to work towards compliance with the government’s guidance on building safety was reasonable. However, there is uncertainty as to whether the landlord used the correct information to prioritise the resident’s block given the contradictory advice it has offered about the block height and the uncertainty about cladding type in its fire risk assessment records. It has also offered inconsistent updates to the resident on the intrusive inspection process and timescale that caused uncertainty and meant that she had to chase progress.

Complaint handling

The resident’s complaint was initially logged on 5 October 2020 on the basis that the landlord had not been able to provide an EWS1 certificate, or a similar letter that may assist her with her re-mortgage application. The landlord issued a stage one complaint response on 10 October 2020, setting out the difficulties that it (and other landlords) had experienced in providing EWS1 certificates for its housing stock and signposting the resident to potential assistance with her re-mortgaging concerns. Although the response was issued within an appropriate timescale and the explanation of the context around EWS1 certificates was accurate, it failed to answer the resident’s request for a letter to be provided to confirm the outcome of its visual survey that she said may have resolved the issue with her lender – the landlord’s failure to respond to this point was unreasonable.
The resident promptly expressed continued dissatisfaction and the landlord confirmed on 12 October 2020 that it would escalate her complaint to the final stage of its complaints process. However, it failed to issue a final complaint response until 7 April 2021. This represented a delay of around six months beyond the timescale that the landlord’s complaints policy sets out for stage two complaints. Although there was correspondence exchanged between the resident and landlord during the delay period, it was unreasonable that the resident had to chase a response on several occasions, particularly given the time sensitive nature of her concerns about fixed rate mortgage deals.
Although the landlord apologised for the delay in its final complaint response and awarded £75 compensation, this did not offer sufficient redress for its service failure. It explained that the delay was because there were occasions when it was unclear who was responsible for managing the complaint. Internal landlord emails seen by this Service confirm that there was confusion on responsibility for the complaint and the complaints team encountered difficulty in obtaining information from colleagues in its safer buildings team.
However, the landlord failed to explain how it would avoid this happening again in future and therefore did not demonstrate that it had learned any lessons from the outcome of the complaint – this was unreasonable given the potential impact of poor complaint handling of EWS1-related cases and the likelihood that it will need to address further complaints on this subject. Further, its compensation offer of £75 was below the level that its compensation procedures recommend it can award for instances of poor complaint handling that have potentially had a severe impact. The landlord therefore failed to offer sufficient redress for its service failure in accordance with the Ombudsman’s Dispute Resolution Principles.
In summary, the landlord failed to answer the resident’s request, made through her complaint, for it to provide a letter that she could use to assist with her re-mortgage application (in the absence of a full EWS1 certificate) and it delayed unreasonably in responding to her escalated complaint request. The apology and compensation it awarded for the delay in its final complaint response did not represent appropriate redress given the length of the complaint handling delay and the potential impact on the resident.

Determination

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of:
1. the resident’s request for an EWS1 certificate;
2. the related complaint.

Reasons

The landlord provided contradictory information to the resident about her building and it is unclear how it prioritised the block for an EWS1 survey given the uncertainty over its height and cladding material. It has also given inconsistent information to the resident as to when an intrusive inspection of the block is likely to be undertaken.
The landlord failed to fully answer the resident’s original complaint and delayed unreasonably in responding to her escalated complaint. Its apology and compensation award of £75 did not provide reasonable redress 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 her on when it now expects to be able to inspect her block and confirm if this will be an intrusive inspection or not;
3. confirm the outcome of its previous fire risk assessments and visual survey, including clarification on the height of the block and the information it holds on the cladding material.
The landlord to pay the resident compensation of £175 in recognition of the distress and inconvenience caused to her by the service failure in its handling of her request for an EWS1 certificate.
The landlord to pay the resident compensation of £75 in recognition of the inconvenience and time and trouble caused to her by its complaint handling service failure (in addition to the £75 it proposed in its final complaint response).
The landlord to consider what additional support it can offer to residents who live in blocks that have not been inspected in 2021/22 as planned, including whether it is now willing to grant permission for privately organised inspections.
The landlord to review its handling of the resident’s escalated complaint to ensure that its complaint and safer buildings teams can answer EWS1-related complaints on time in future.

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

Recommendations

The landlord to update all leasehold properties in the resident’s block as to when it now expects to be able to inspect the building and confirm if this will be an intrusive inspection or not.

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