Southwark Council (202203904)

REPORT

COMPLAINT 202203904

Southwark Council

20 April 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 the wording in a fire risk assessment to be changed.
2. The landlord’s response to the resident’s concerns about a data breach.
3. The landlord’s complaint handling.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 42(k) of the Housing Ombudsman Scheme, the landlord’s response to the resident’s concerns about a data breach is outside of the Ombudsman’s jurisdiction. Paragraph 42(k) of the Scheme states: “The Ombudsman may not consider complaints which, in the Ombudsman’s opinion…fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body”.
The resident has requested compensation for a reported data protection breach involving a letter that was sent by the landlord to a third-party. The Ombudsman is unable to make findings concerning data breaches and as such could not make any recommendations or orders for compensation to be paid. The Information Commissioner’s Office (ICO) considers complaints about data handling, compliance with the Data Protection Act and the General Data Protection Regulation. The complaint regarding the reported data breach is therefore not within the jurisdiction of the Ombudsman to consider.

Background

The resident is a leaseholder of a local authority and the original lease began on 25 February 1991. The property is a two-bedroom flat within a purpose-built, three-storey block consisting of six units. The block is approximately six metres in height and is the middle of three blocks.
Under the terms of the lease, the landlord is responsible to “keep in repair the structure and exterior of the flat and of the building (including drains gutters and external pipes) and to make good any defect affecting that structure”.
The Government initiated its Building Safety Programme after the fire at Grenfell Tower. A series of advice notes were issued by the Government as part of this. Advice Note 14 was issued in December 2018. It was for owners of high-rise residential buildings (18m or above to the height of the top occupied storey) 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 residents, that their building was safe.
Government guidance on building safety was consolidated in ‘Building Safety Advice for Building Owners’, issued in January 2020. This confirmed that the guidance applied to all multi-occupied residential buildings under 18m. Paragraph 1.4 of this guidance stated: “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”. Also, paragraph 1.6 of the guidance stated: “We strongly advise building owners to consider the risks of any external wall system and fire doors in their fire risk assessments, irrespective of the height of the building…”.

Summary of events

On 12 November 2020, in accordance with Regulatory Reform (Fire Safety) Order 2005, the landlord carried out a Fire Risk Assessment (FRA) for the property and produced a report. The FRA stated in section 7.9.2: “Long term the EWI (External Wall Insulation) should be removed, this is deemed to be a low risk and should be carried out at the next major work”. A target date of 12 November 2021 was shown for this action.
The landlord sent the resident a copy of the FRA on 24 December 2020 and confirmed in the covering letter that the FRA was a ‘live document’ and therefore was subject to change and alteration at any time. It also stated that “the recommended timescales stipulated for action in the report would not necessarily be in line with the programme timescale of another department”.
On 2 August 2021, the landlord sent the resident its standard pre-assignment information pack, which is issued as part of the property sale process. The information confirmed that at the time there were no Section 20 notices served for major works that had not been invoiced (Section 20 of the Landlord and Tenant Act 1985 requires landlords to follow set consultation procedures prior to carrying out certain works in order to recharge the costs to leaseholders).
The landlord wrote to the prospective buyers of the property on 19 October 2021 and informed them that:
1. There were no plans at that stage to remove the cladding from the building as it was deemed to be low risk;
2. The Government advice was that funding was available to assist leaseholders with the cost of cladding removal from buildings that were six storeys or less in height;
The resident wrote to the landlord on 29 October 2021 and 1 November 2021 and queried the contents of the FRA. He asked why a statement had been included in section 7.9.2 of the report to show that the external wall insulation (EWI) should be removed in future major works. The resident’s letters stated:
1. The resident’s understanding was that buildings over 18 metres should have non-combustible EWI, but the block was only three storeys in height;
2. A building regulation certificate had been issued by the landlord’s building control team for the external insulation system;
3. The resident said he had checked with the insulation company and they had confirmed that the product used in the block complied with the current building regulation requirement;
4. The resident said he was concerned that the wording in the FRA may create an issue in the future should his mortgage company become aware of the wording in the report;
5. The resident asked the landlord to review the advice in the FRA ‘to remove the insulation during the next major works’ and, if the wording was included in error, then it should be omitted.
The landlord replied to the resident on 2 November 2021 and reiterated that there were no current plans to remove the cladding as it was deemed to be low risk.
The resident sent further emails to the landlord on 2 and 4 November 2021, in which he continued to query the wording in the FRA and emphasised that the prospective buyer for the property would withdraw unless the wording in the FRA was revised.
The landlord replied to the resident on 5 November 2021 and explained that:
1. The landlord would not be able to arrange an External Wall Systems Fire Review certificate (EWS1) for the property because it was less than 18 metres in height;
2. The landlord had reviewed the FRA and concluded that the statement in section 7.9.2, i.e that the insulation cladding should be removed in the next major works, was in line with the guidance at the time of the assessment;
3. Cladding would only be removed if there is a statutory requirement to do so or if it posed a significant risk to life. As the surveyor had deemed the cladding to be low risk, it was unlikely to be removed.
The resident wrote to the landlord on 6 November 2021 and again asked for the wording in the FRA to be amended. The landlord acknowledged the resident’s email the next day and said that the resident’s ‘requirements’ had been submitted for review.
On 8 November 2021, the landlord wrote to the resident and stated the following:
1. The landlord referred to section 7.9.2.1 of the FRA and confirmed that the assessment was that the external cladding needed to be removed as it was not known whether it was flammable or not. The associated action in the FRA was therefore to remove the external insulation cladding from the building during the next major works;
2. The landlord confirmed that the FRA had been reviewed and the statement in section 7.9.2.1 was correct;
3. An EWS1 was non-mandatory as the building was under 18 metres high;
4. The FRA was within acceptable tolerances and the external wall risk was low;
5. A “placeholder” had been added to allow future replacement of the expanded polystyrene (EPS) render system with a limited or non-combustible system (this Service understands from later landlord correspondence that the term ‘placeholder’ means provision would be made for the work to be part of a future major works scheme).
The resident sent further emails to the landlord on 8 and 9 November 2021 asking for an explanation of how the landlord had come to its decision that it would not omit the comment in the FRA action plan to ‘remove the external wall insulation’. The resident added that he was concerned the building had not been correctly assessed and advised the landlord that a prospective buyer would be withdrawing due to the wording in the report.
The resident wrote to the landlord on 10 January 2022 to report that he was still experiencing difficulty selling his property due to the landlord’s refusal to amend the wording in the FRA or provide him with a letter amending the relevant paragraph in the FRA. The resident again requested the landlord to omit the action in the FRA to remove the cladding.
On 11 January 2022, the resident submitted a stage one complaint form to the landlord, in which he stated the following:
1. The wording in the FRA suggested the EWI was non-compliant;
2. The resident said he had already lost a buyer as the buyer did not feel comfortable proceeding “due to the conflicting information”;
3. As the building was less than 18 metres in height, the external insulation system met the building regulation performance for the building type;
4. The resident said the landlord had refused to amend the FRA wording to show that the external cladding did not need to be removed;
5. The letters provided by the landlord on 5 and 8 November 2021 had caused a further issue because one stated that the cladding was unlikely to be removed and the other confirmed it would be removed during the next major works;
6. The resident requested a “full investigation” into the landlord’s decision not to amend the FRA;
7. The resident requested that the landlord put things right by amending the FRA wording and sending a letter confirming the EWI was compliant with the current building regulations.
The landlord wrote to the resident on 26 January 2022 to provide clarification regarding the wording in its letters dated 5 and 8 November 2021 and in the FRA. The landlord stated:
1. The letter dated 5 November 2021 said that the removal of the cladding was “unlikely” because at the time there was no planned major works scheme;
2. The wording in the letter dated 8 November 2021 followed the escalation of the matter to a senior manager, and it was concluded that “due to the council’s commitment to fire safety, the cladding may be removed as part of the council’s risk reduction measures”;
3. The landlord had reviewed and amended the FRA in line with the Government announcement in January 2022 and enclosed a copy for the resident. The revised wording in section 7.9.2.1 of the FRA was: “An independent evaluation report is required to be carried out of the building’s installed external wall cladding so that a decision can be made, so that the currently installed system can remain in place, or if fire safety measures are required to mitigate for the external wall cladding, or if the external wall cladding is required to be removed.”
4. The landlord confirmed that the cladding on the building would be reviewed using a priority-based approach as part of the council’s building safety programme.
A further letter was sent to the resident by the landlord on 28 January 2022 stating that following escalation to a senior manager, the landlord had concluded that “due to the council’s commitment to fire safety, a place holder has been added to allow future replacement of the cladding as part of the council’s risk reduction measures”.
The resident replied to the landlord on 3 February 2022 and stated the following:
1. The updated FRA was more accurate and clearer;
2. The landlord’s delay in amending the FRA had resulted in a financial loss to the resident as the resident had not been able to sell his property;
3. The letters sent by the landlord on 5 and 8 November resulted in a loss of confidence in the accuracy of the FRA on the buyer’s part and this had resulted in the loss of the property sale;
4. The resident confirmed that he wanted to make a formal complaint about the landlord’s handling of his request to update the FRA in November 2021 and he wanted to claim compensation for “the failed property sale and for distress”.
The resident emailed the landlord on 23 February 2022 stating that he was claiming compensation of £25,000 for various reasons, including: expenses incurred, the inconvenience of having a buyer withdraw, loss of income and inconvenience relating to the tenant who was occupying the property, a data protection breach, conflicting letters and, in the resident’s view, inaccuracies in the FRA and a lack of willingness on the part of the landlord to amend the FRA.
The landlord acknowledged the resident’s email on the same day and said the issues were being considered as part of an earlier complaint submitted by the resident (on 11 January 2022).
The resident sent a further email to the landlord on 7 March 2022 to report that a second buyer had withdrawn from the sale because of concerns about the contradictory letters sent by the landlord.
On 15 March 2022, the resident chased the landlord for a reply to his complaint and on 21 March 2022 he asked for his complaint to be escalated to stage two. The landlord sent its stage one response on 23 March 2022. The response referred the resident to its letter that was sent on 28 January 2022 and stated that this was its final response to the resident’s query.
The resident also wrote to the landlord on 28 March 2022 with further details about why he was dissatisfied with the landlord’s letter of 28 January 2022. The resident’s letter was headed ‘stage 2 complaint’ and in it he reiterated his request for compensation of £25,000 and explained the reasons for his claim.
The resident wrote to the landlord again on 8 April 2022 to ask why he had not received an acknowledgement to his complaint dated 21 March 2022 (this Service understands that the resident was referring to his request to escalate his complaint to stage two). The landlord replied on the same day and apologised for the delay in escalating the resident’s complaint. The landlord then spoke to the resident on 10 May 2022 to update him of progress and wrote to him on 18 May 2022 to apologise for the delay in sending its stage two response.
The landlord sent its stage two reply on 25 May 2022, in which it stated the following:
1. The landlord’s letter sent on 5 November 2021 was correct because although the FRA said that the EWI should be removed at the next major works, the absence of any scheduled major works at the time meant that it was “unlikely to be removed”;
2. Following a request by the resident, the landlord’s letter of 8 November 2021 sought to clarify the matter by advising the resident that the cladding may be removed and that as the cladding material fell within Government tolerance levels and there were no imminent plans for major works to take place, a “placeholder” had been added to allow future replacement of the cladding should Government guidelines change;
3. The FRA was reviewed again in January 2022 following the withdrawal of the Government’s Consolidated Advice Note on 10 January 2022. The revised wording in the FRA confirmed that the cladding on the building would be subject to an evaluation and review using a priority-based approach;
4. The landlord said it had followed all requirements for both the Royal Institute of Chartered Surveyors (RICS) and Government guidance;
5. The landlord confirmed that the FRA was a legal document governed by the Regulatory Reform (fire Safety) Order 2005 and contained factual information that was true and correct at the time and therefore the landlord was unable to amend the document;
6. The landlord concluded that the correct procedure had been carried out and the contents were correct;
7. The landlord acknowledged that a copy of a letter addressed to the resident had been forwarded to a prospective buyer of the property and therefore the correct procedure had not been followed;
8. The landlord did not uphold the resident’s complaint that it should have amended the FRA, but it upheld the complaint that a letter addressed to the resident should not have been forwarded to a prospective buyer:
9. The landlord felt that the letters dated 5 and 8 November 2021 clarified the contents of the FRA and therefore “it is the findings of the FRA that may have hindered the sale at the time”;
10. The landlord confirmed that it did not consider itself responsible for the two property sales falling through, because the FRA was a legal document and could not be amended.

Assessment and findings

The Regulatory Reform Fire Safety Order 2005 sets out that the responsible person for multi-occupied residential buildings must carry out a fire assessment in communal areas, making sure precautions and procedures are in place to protect occupants in case of fire. It also requires the responsible person to ensure that any fire risk assessment is carried out by a competent person.
The landlord’s fire risk assessment procedure states that investment decisions to deal with issues arising from FRAs are prioritised on the basis of risk.
The landlord carried out an FRA on the resident’s block on 12 November 2020 and the FRA included an assessment of the external insulation cladding. The assessment was that the risk was low, but that it should be removed at the next major works. On 2 August 2021, the landlord confirmed in its pre-assignment pack, which is sent to residents wishing to sell their property, that there were no outstanding Section 20 notices that had not already been invoiced. Notices are served under Section 20 of the Landlord and Tenant Act 1985 to advise residents of a landlord’s intention to carry out work or provide a service that leaseholders will have to pay towards. Therefore, the absence of outstanding Section 20 notices indicates that the landlord had no plans at that time to carry out major works to the block.
During the various exchanges of correspondence with the landlord, the resident stated that the wording in the FRA to remove the cladding was misleading because it implied that the cladding was unsafe. He felt there was no basis for this as the block was under 18 metres in height and he had been informed by the external insulation company responsible for providing the cladding in the building, that the cladding insulation material complied with the current building regulations. The resident was concerned that the statement in the FRA might lead to an issue with his mortgage company and he therefore asked the landlord to amend the wording.
The landlord informed the resident on 5 November 2021 that it had reviewed the FRA and found that the advice to remove the cladding was in line with the guidance at the time of the assessment. This Service can confirm that the guidance relating to cladding that was in force at the time of the FRA inspection was the Government’s guidance called ‘Building Safety Advice for Building Owners’, issued in January 2020. This guidance advised landlords to consider the risks of any external wall system in their fire risk assessments regardless of the building height. It was therefore appropriate for the landlord to have assessed the risks of the cladding system as part of the FRA.
In terms of the actual wording in the FRA, the introduction to the FRA confirms that it was carried out by a competent person as required by the Regulatory Reform Fire Safety Order 2005. It is not appropriate for the Ombudsman to question the findings within the FRA, as it was carried out by a competent person and it represents an audit of the building at a particular point in time. The Ombudsman would, however, expect the landlord to explain the rationale for its decisions and to review its decisions after the resident had raised concerns.
The landlord wrote to the resident on various occasions to explain the wording in the FRA, including on 2, 5 and 8 November 2021 and on 28 January 2022. The landlord’s letter of 5 November 2021 stated that the FRA had been “thoroughly reviewed” and the landlord had concluded that the FRA wording was in line with the guidance that was in force at the time. The letter went on to say that the surveyor had considered the cladding to be low risk and therefore it was “unlikely that the cladding [would] be removed”. The landlord’s letter of 8 November 2021 stated that the FRA had been reviewed again and that the FRA wording was correct. It stated that the FRA was “within acceptable tolerances” and the external wall risk was low. It went on to say that a ’placeholder’ had been added (in relation to its major works programme) to replace the expanded polystyrene render system with a limited or non-combustible system “as part of the council’s risk reduction measures”. The resident has stated that the two letters from the landlord were contradictory. Therefore, the landlord later provided further clarification in its letter dated 28 January 2022. In the view of this Service, the landlord acted reasonably by providing further explanations about the FRA wording to the resident, and reviewing the FRA wording when asked to do so by the resident.
This Service has considered the content of the landlord’s letters dated 5 and 8 November 2021 and finds that the first letter could have been clearer in explaining why the landlord now considered the removal of the cladding to be ‘unlikely’, despite the FRA stating that it should be removed at the next major works. The landlord’s second letter was clearer and was consistent with the FRA, i.e. it confirmed that the external wall risk was low and that a marker had been added to allow for the future replacement of the cladding. The landlord’s letter dated 28 January 2022 was also consistent with the FRA. Therefore, although there was a shortcoming in the wording of the landlord’s letter dated 5 November 2021, the landlord quickly provided clarification on 8 November 2021 and again on 28 January 2022. The landlord therefore acted in a timely manner to clarify its position.
The Ombudsman’s view is that the landlord’s decision not to amend the FRA wording prior to January 2022 was reasonable because:
1. The FRA had been produced by a competent person as required by the Regulatory Reform Fire Safety Order 2005;
2. The landlord having appointed a ‘competent person’ to carry out the FRA was entitled to rely on the findings of that person in relation to the FRA wording;
3. The landlord had twice reviewed the FRA in November 2021 and concluded that the wording in the FRA was correct;
4. Although the cladding met the building regulations and the block was under 18 metres, the landlord was entitled to decide to replace the cladding in a future major works programme as part of its “commitment to fire safety” and as part of its obligations set out in the lease to maintain the exterior and structure of the building.
The landlord’s response to the resident’s concerns about the wording of the FRA was also reasonable because:
1. The landlord wrote to the resident on different occasions to clarify the FRA wording;
2. The landlord considered the resident’s request to amend the wording by reviewing the FRA twice in November 2021 and meeting (virtually) with the resident and his property solicitor (as referenced in the resident’s letter of 6 November 2021);
3. Although the wording in the landlord’s letter dated 5 November 2021 could have been clearer, the landlord clarified its position three days later and again on 28 January 2022;
4. The landlord reviewed the FRA again in January 2022 following the publication of new Government guidance and it amended the FRA wording accordingly.
This Service understands the resident’s frustration that the landlord had identified the removal of the cladding when there was no legal imperative for it do so and there was evidence that the cladding met the Building Regulations. However, as the landlord was responsible for the exterior and structure of the building, it was entitled to decide to remove the cladding sometime in the future. Building Regulations are minimum standards for the design, construction and alterations to buildings, and therefore a landlord may choose to exceed them. In this case, the landlord chose to earmark the removal of the cladding as part of its wider fire safety approach. Whilst it was far from ideal that the landlord did not specify a timescale for removing the cladding, the landlord had deemed the risk of the cladding to be low and its fire risk assessment procedure confirms that investment decisions were being taken on the basis of risk.
The resident has stated that the landlord’s actions led to two property sales falling through and he is therefore claiming compensation to cover his reported financial losses. However, the resident’s claim for compensation is essentially a claim that the landlord acted negligently and this led to the resident’s financial loss. As negligence is a legal concept, the resident may want to take legal advice on this point.

The landlord’s complaint handling

The landlord operates a two-stage complaints process and its complaints policy states that responses to stage one complaints should be sent within 15 working days and stage two within 25 working days. This Service has noted that both of these timescales are longer than those stated in the Housing Ombudsman’s complaint handling code (available on the Housing Ombudsman’s website) and an order has therefore been added to this report for the landlord to notify the Ombudsman of its plans for bringing the complaints policy in line with the complaint handling code.
The resident submitted a stage one complaint form to the landlord on 11 January 2022 regarding the wording in the FRA and the impact this was having on his ability to sell his property. On 15 March 2022, the resident chased the landlord for a response to his complaint. The resident then wrote to the landlord on 21 March 2022 and asked for his complaint to be escalated to stage two.
The landlord replied to the resident’s stage one complaint on 23 March 2022, which was approximately five weeks longer than the timescale stated in its complaints policy. The landlord therefore failed to meet its own complaints standard and the delay meant that the resident had to chase the landlord for a reply. This Service has noted that the landlord had written to the resident on 28 January 2022 to clarify the wording in its earlier letters and to advise the resident that the FRA wording had been amended. However, the landlord’s delay in responding to the resident’s complaint was unreasonable and the stage one response did not offer an explanation or apology for the delay in dealing with the complaint.
The resident wrote to the landlord on 28 March 2022 to provide detailed reasons why he was dissatisfied with the landlord’s response and why he wished to proceed to stage two of the complaints process. The resident chased the landlord on 8 April to ask why his request to escalate the complaint, which he sent on 21 March 2022, had not been acknowledged. The landlord responded on the same day and apologised for not escalating the complaint. The landlord replied to the resident’s stage two complaint on 25 May 2022 and therefore took approximately four weeks longer than its published timescale of 25 working days.
The evidence shows that the landlord spoke to the resident on 10 May 2022 and wrote to him on 18 May 2022 to update him on progress and the landlord apologised for the delay in its stage two letter. However, the landlord did not offer financial redress to the resident for the delays at stage one and stage two of the process. The landlord’s compensation policy states: “In assessing whether time and trouble compensation is payable relevant factors could include…the length of time, including response times by the council”. Therefore, it was inappropriate for the landlord not to offer compensation for the delays, given that the resident had spent time and trouble chasing the landlord for a response at both stages of the process.
The Ombudsman applies its dispute resolution principles in the way it considers disputes. The three principles are:
1. Be fair – treat people fairly and follow fair processes
2. Put things right
3. Learn from outcomes
In this case, there was a delay in responding to the stage one and two complaints, and the landlord did not offer financial redress in order to put things right. Compensation has therefore been ordered by the Ombudsman. The amount ordered is within the range recommended in the Ombudsman’s remedies guidance for cases where there was a failure which adversely affected the resident and the landlord has made no attempt to put things right.
This Service has also noted that the landlord’s stage two response referred the resident to the wrong Ombudsman Service, as it should have said that the resident could take his complaint to the Housing Ombudsman, not the Local Government Ombudsman. In this instance, the error did not delay the resident in contacting this Service, but other residents may be denied the opportunity to escalate their concerns if the error is repeated.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its response to the resident’s request for the wording in a fire risk assessment to be changed.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its complaint handling.

Reasons

The landlord reviewed the FRA wording when it was asked to do so by the resident and, having done so, it was entitled to decide to retain the existing wording as part of its fire safety approach.
The landlord delayed sending its stage one and two replies and did not offer financial redress to recognise the time and effort involved in the resident having to chase the landlord for a response.

Orders

The landlord is ordered within four weeks of this report to:
1. Pay the resident compensation of £200.
2. Notify the Ombudsman of its plans to review its complaints policy so that it complies with the Ombudsman’s complaint handling code.