Thames Valley Housing Association Limited (202108291)

REPORT

COMPLAINT 202108291

Thames Valley Housing Association Limited

29 April 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

The complaint is about:

Background and summary of events

The residents occupied a three-bedroom duplex penthouse on the 4th floor of a block under a shared ownership scheme with the landlord. The resident had purchased the property on 27 September 2018. The block where the resident’s duplex was situated was on an estate with two other blocks. The resident’s block will be referred to as Block “A”. The landlord was the freeholder and developer. It had contracted the building to a building contractor, who will be referred to in this report as the landlord’s contractor. For ease and clarity, as the residents took turns in corresponding with the landlord, the residents will be referred to as “the resident” and “they”.
The resident had made a previous complaint under case reference 202101951 which set out the initial background of this complaint. Briefly, the relevant details are that the evidence showed that the resident made enquiries about selling their property in, or shortly prior to, July 2020. They instructed the landlord to sell the property on 10 August 2020. A buyer made an offer to buy the property through the resident’s then estate agent in January 2021.

Legal, guidance and policy framework

Under the lease, the landlord was responsible for the maintenance, repair, renewal and (where, in the reasonable option of the landlord, such works were required) improvement of the structure of the building which included the window frames and the common parts of the building.
The expenditure would include the costs of the landlord complying with its obligations under the lease, outgoings in relation to the estate and costs that the landlord deemed necessary. The amount of service charges would be the estimated expenditure likely to be incurred. The amounts would be reconciled after the accounting year ended, in April.
The landlord did not have a policy regarding service charges but the landlord informed the Housing Ombudsman Service that it complied with the relevant legislation set out in sections 18 to 30 of the Landlord and Tenant Act 1985 and any other regulatory requirements which applied to variable service charge management.
Broadly speaking, under the legislation, the relevant costs must be reasonably incurred. It also provided to the resident consultation rights in relation to expenditure over a certain amount.
Under the landlord’s complaint policy, the complaints process was a two-stage process. The first stage had a response time of 10 working days. The resident had the right to escalate the complaint. The second stage response timescale was 20 working days.
Under the landlord’s compensation policy, it would award a sum up to £50 where there was some impact on the complainant. The impact experienced by the complainant could include distress and inconvenience, time and trouble, and disappointment. It would award a sum ranging between £51 and £160 for considerable service failure or total lack of ownership, but where there had been no permanent impact on the complainant. It would award £161 to £350 for “severe lack of ownership and accountability” and where there had been “severe long-term impact on the complainant”.

Fire safety

In the landlord’s 2018/2019 annual report, it stated that it had carried out a comprehensive review of its fire safety procedures. According to its 2019/2020 annual report, it identified fire remediation as a risk in relation to non-compliant buildings. It identified an obligation to restore buildings to an appropriate standard of fire safety as a result of which it had established a specialist team, including external surveyors and advisors. It also commenced a full review of buildings over 11 metres high, which were prioritised on a risk basis. A fire risk assessment would take place every three years and be reviewed annually.
The landlord has informed this service that its fire safety policies relevant at the time are no longer accessible due to its storage process. It has also assured this service that all documents are archived centrally to avoid a reoccurrence, however it provided this service with its fire safety procedures which the landlord has informed this service would reflect its policy.
Under the landlord’s fire safety procedure dated March 2018, the landlord would ensure that its buildings, land and sites met all relevant statutory fire safety requirements during any stage of its lifecycle for which it has responsibility. The landlord would carry out a risk assessment on premises that it owned, on a risk-based approach. Low priority remedial works should be undertaken within six months of identification. It acknowledged the importance of fire safety deadlines and views revising them as being an exceptional event.
The landlord has informed this service that the landlord’s fire safety procedure dated January 2020 was operating at the time covered by the complaint and to date. The 2020 procedure was more detailed than the 2018 procedure in particular as regards new builds. It also set out the requirements for its risk assessment on premises, which was determined on a risk-based approach. A survey could be carried out in circumstances where there were concerns over the possible presence of hidden voids or a lack of compartmentation. One of the criteria for risk rating was the number of floors. Four floors were classed as moderate risk and six floors as high. Actions required by the fire risk assessment would be prioritised according to risk into an action plan. Long term actions had a six months’ time-frame.
Under the 2020 and previous 2018 procedure, the landlord would ensure, as a minimum, that its buildings were designed to meet the building regulations in force at the time of construction and that the principles of elimination of risk set out in the Construction, Design and Management Regulations were adhered to fully during the design process in both new construction and during renovation and repair. Contractors would be required to ensure that adequate fire safety measures are in place. The landlord would ensure that its buildings, land and sites met all relevant statutory fire safety requirements during any stage of its lifecycle for which it had responsibility.
It set out its procedure in relation to risk in the design of new buildings in a document not provided to this service. It included a risk matrix for all new fire related items. In its Design Guide it instructed that non-combustible materials should be used. The risk matrix stated that a building of traditional construction for general needs (not intended for those identified as vulnerable) under 18 metres which fully complied with “Approved Document B” was classed as low risk.
Under the landlord’s fire safety policy, March 2022, it would ensure that all relevant persons are cognisant of the risk to which they are exposed within the landlord’s premises. A dedicated head of a directorate would ensure that the landlord was kept abreast of any changes of legislation and standards relevant to premises across the business. It would robustly discharge its duties as required in the guidance on Building Safety, as issued by the Ministry of Housing Communities and Local Government. This will include the robust investigation of building external envelopes and compartmentation within its premises from where robust remedial works would be enabled. Such investigations would not be solely prioritised on building height but would be cognisant of the risk profile of its occupancy.

The EWS1

In December 2019, following the Grenfell fire and government advice regarding building safety, the EWS1 was introduced for buildings over 18 metres high. The Royal Institute of Chartered Surveyors (RICS) had devised the EWS1 form for the purpose of providing confirmation to valuers and lenders that an external wall system or attachments on buildings containing flats had been assessed by a suitable expert. In January 2020, the government issued guidance that 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”. It added that “The need to assess and manage the risk of external fire spread applies to buildings of any height.” Following this advice, mortgage lenders began to require an ESW1 for buildings under 18 metres as well.
In July 2021, the government issued a statement stating that EWS1 forms were not needed for buildings below 18 metres.
The government withdrew the January 2020 advice note altogether on 22 January 2022.
There was no statutory or automatic obligation for landlords to carry out an EWS1 assessment or provide copies of EWS1 forms to leaseholders.
In the words of the form, the EWS1 form was for the external wall system only. It was not a fire safety certificate.
The form had two assessment criteria, A and B. “B” applied to properties where there were “combustible materials present in the external wall”. Option A required the signatory to have the expertise to identify the relevant materials within the external wall and attachments, and whether fire resisting cavity barriers and fire stopping measures have been installed correctly. Option B required that the assessor had specific qualifications in relation to fire safety. The assessment would be rated as B1, which was a pass, where, in the view of the assessor, the fire risk was sufficiently low that no remedial works were required, or B2, essentially a fail, where the fire risk was sufficiently high that remedial works were required and that the assessor had identified the remedial and interim measures required, which would be referred to in the assessor’s report.

Chronology

The landlord’s response to the resident’s concerns regarding fire safety at the property and how this impacted on the sale of their property.

A certificate of completion of works was issued by the local authority in relation to building regulations on 19 December 2017 confirming the local authority was satisfied, insofar as it could ascertain, that the resident’s building complied with the Building Regulations 2010. The Buildings Regulations 2010 are amended from time to time. The 2013 version was operating at the time of the construction of the resident’s building.
On 8 February 2021, the landlord wrote to all residents “to confirm” the then situation regarding obtaining a compliant EWS1 form for the building. It had been working over “recent weeks” with the landlord’s contractor to ensure that the external wall structure was compliant with the latest government building safety standards in order to obtain a compliant EWS1 form. The landlord’s contractor carried out an initial inspection during the week of the 18 January 2021. It then appointed a fire engineer. It would update the residents. It appreciated that its communication with the residents had not been satisfactory.
A fire expert consultant (“Y”) instructed by the landlord’s contractor wrote to the landlord’s contractor on 10 February 2021 regarding block A as follows:

a. The hallways had been constructed with fire–rated partitions and fire doors. However, post–completion inspections of the entrance hallways had discovered issues with the construction including incorrect support for fire door frames and sealing of the doors. In the circumstances, it was difficult to guarantee that the construction would perform to the same fire tested standard. The issues only impacted on the internal escape within the apartment concerned, it did not affect the wider building and the defend–in –place overall evacuation philosophy for the building.

Y explained this would affect hallways after a prolonged exposure to fire.
It was highly likely that the existing construction would offer a reasonable degree of separation prior to any deficiencies being exposed.
There would need to be greater degrees of early warning present and therefore it proposed that “LD1” fire alarms be installed.
The remainder of the letter set out a technical analysis and rationale for the solution proposed.
“Approved Document B” (statutory guidance on building regulations) recognised this was not the only method of satisfying the functional requirements of the building regulations and recognised that alternative solutions could be adopted.
Y concluded that the specified upgrade to the fire alarm and detection systems would adequately mitigate the deviations in the partition and door frame construction of the entrance hallways within the apartment. Based on this upgrade being made, the existing hallway construction would maintain adequate means of escape within the apartment and maintain the requirements of building regulations.

On 17 February 2021, the landlord wrote to the residents regarding fire alarm upgrade works to the resident’s block in response to residents’ concerns. It explained that contact from its contractors installing the alarm system was “genuine”. It apologised for the lack of information from the landlord. The block had been recommended for upgrades to the fire alarm system to “LD2” to bring the building up to current regulations. A contractor had been appointed to undertake the works. The current alarm system was the correct system when the building was constructed. However, in April 2019, the regulations were updated. While the regulations were not retrospective, an upgrade had been recommended by its previous fire safety surveyor so the block had been placed on an upgrade programme.
It explained the mechanics and timescales. Though such works would usually be funded by the leaseholders, these works would be funded by the landlord. When the project was put together 18 months previously, issues with processes at the time led to the landlord committing to funding the works.
On 23 February 2021, the landlord wrote again to the residents referring to a letter dated 9 February 2021 (sic) regarding the latest update in relation to the EWS1. A fire consultant would issue the EWS1 or advise that further assessments were required. It hoped to have a further update by early March 2021. However, further investigations may be required.
On 24 February 2021, the landlord wrote to the resident in response to their questions regarding the EWS1 forms as follows:
1. The landlord became aware of “cladding” issues when it was in the process of obtaining EWS1 for block A. The building remained within the defects period and therefore the responsibility for the external wall structure was with the landlord’s contractor. It had anticipated obtaining the EWS1 form at the same time as a neighbouring block which received its EWS1 in September. It was then it clear that the resident’s building required further investigation.
2. It instructed a specialist engineer (X”) to carry out the ESW1 report in September 2020. When it was notified that an EWS1 form was required, it made relevant enquiries from the landlord’s contractor to be provided to a specialist fire consultant. Due to the complexity of the matter, this process took many weeks to conclude. The landlord’s contractor had initially informed the landlord it would gain a pass rating. Further investigation confirmed that the building materials used within the external wall structure were different to those used in block A. Another consultant would carry out further checks of the external wall structure of the building.
The resident replied on the same day asking why the residents had not been informed previously of the issues. The landlord had known about the issue for over a year. They would be unable to sell without the ESW1. They were concerned about losing their buyer and missing the stamp duty holiday. They requested a timescale for the provision of the ESW1.
On 25 March 2021, the resident made a formal complaint to the landlord that they had been chasing the landlord’s team dealing with building safety since January 2021 with 19 emails spanning over two months. The response had been that the landlord was unable to answer their questions.
On 29 March 2021, fire consultant (“Y”) wrote to the landlord’s contractor. The lack of cavity closers around the windows and doors to the duplexes represented a deviation from the prescriptive building regulations (Y did not specify which version), which would require remedial reinstatement. It recommended installing a specific cavity closer around each window and door location for the duplex external walls. Y’s view was that the lack of cavity closers posed a relatively small fire risk to the residents and the buildings remained safe to occupy whilst the remedial works were being completed. Y provided its technical analysis in support.
Y stated that the building remained safe given the duplex facades were on the roof of the existing building with their facades set back therefore these areas were self–contained from the building below and Y provided an explanation for its conclusion. Y stated that lateral fire spread from one duplex to another was very unlikely in the event that a fire did enter the cavities. Y went on to state that this route of spread was also protected due to the vertical cavity barriers which were present between each duplex.
On 1 April 2021, the resident chased replies to their questions regarding the landlord’s instructions to the fire consultant and queried the delay in being informed that a EWS1 was required.
There were a number of internal enquires by the complaints team into the resident’s questions as well as a discussion concerning the service charges issues that they had raised.
The landlord wrote with its first response to the resident’s complaint of 25 March 2021 on 8 April 2021. It addressed the resident’s questions in their complaint and subsequent correspondence as follows:
1. It apologised that it had taken two months to provide a response to their queries. It had not met the standards it would have liked.
2. A fire specialist consultant “X” had attended block A in September 2020 to carry out a survey. The consultant X had also inspected two other blocks including their block but had not undertaken an intrusive survey. It was only then that it had asked its contractor to provide the technical reports and information. It had also instructed a survey on another block in the estate in September 2020 which was completed in October 2020. It instructed the consultant to undertake the survey to the resident’s block at that time.
3. No survey was completed as the consultant were unable to sign off the EWS1, due to the wall construction of the resident’s block being different to that of block A.
4. The EWS1 was only introduced in January 2020. It was only intended to apply to buildings over 18 metres in height. It only learnt that some lenders required the EWS1 for buildings below 18 metres some months later and therefore applied to the resident’s block.
5. It had been communicating with residents on this matter. It had not prioritised block A but the landlord’s contractor only informed the landlord “late in the day” that a combustible material was present in the inner leaf of the external wall of the resident’s block so an intrusive survey was required. The problematic material was not present in block A.
6. It could not comment on agreements with other residents due to confidentiality issues.
7. It appreciated the difficulties and frustrations customers were facing regarding the EWS1 forms.
8. Many lenders had made independent certification a requirement for buildings that were outside of the original scope of the EWS1 form. Accordingly, it had not been aware that some customers would be impacted by this.
9. It apologised for the delay in providing the EWS1 form. It was taking a risk-based approach to its delivering EWS1 forms. Its specialist team would continue to keep customers informed throughout the process of delivering the necessary works.
10. It assured the resident of better communication in the future.
11. It stated that it did not prioritise the sale of one site over theirs. A previous survey had identified that a combustible material was present in the inner leaf of the external walls of the resident’s block but not in block A that the resident had felt the landlord had prioritised. Intrusive works were not required in block A, therefore the EWS1 was signed off more quickly.
12. It accepted that its response was delayed. This was due to the fact the landlord’s contractor appointed a different fire consultant to complete the EWS1 in relation to the resident’s block which required the consultant to undertake an extensive review. It was unable to provide the report as it was confidential but it would provide the signed EWS1 form once available.
13. It upheld the complaint on the basis that it had not provided the information requested within the relevant timescales or acted swiftly to address “certain matters”.
14. It offered £100.00 to address the time and trouble of the resident chasing “this matter” through various departments.
The resident wrote on 10 April 2021 querying why the landlord did not notify residents on completion of the survey that the building contained combustible material.
On 13 April 2021, engineer “Z” issued a EWS1 regarding the resident’s block with a B2 rating, stating that the fire risk was sufficiently high that remedial works were required.
Engineer “Z” wrote to the landlord’s contractor on 26 April 2021 as follows:
1. In accordance with the ESW1, the resident’s block had been assessed by a Chartered Fire Engineer who was also a Chartered Engineer and a Member of the Institute of Fire Engineers.
2. It noted that the resident’s property had an uppermost storey of less than 18 metres, therefore under the guidance of “Approved Document B” ,there would be no requirement for there to be controls on the type of insulation used in the external walls of the building. However, regardless of building height, there were requirements for the provision of cavity barriers around openings in external cavity walls and this applied to any buildings regardless of height to the uppermost storey.
3. It noted that the penthouse units “Duplex Units” on the third and fourth floor had an insulated render external wall system, which had a small cavity behind the insulation. The window frames were aluminium and therefore not formally recognised by the approved code of practice as being allowable for use as cavity barriers.
4. In order to support the installed external wall arrangement, it considered that the provision of upgraded fire detection throughout the “Duplex Units” would provide early warning to a fire. It referred to Y’s letters of 29 March 2021 and 10 February 2021 which confirmed this assessment as a suitable way forward.
5. Based on this approach, it would be permissible to provide an EWS1 form via the fire risk assessment approach rated as B1.
Engineer Z produced a report dated 30 April 2021. This was a review undertaken with Y, further to previous discussions with the landlord’s contractor. It listed the extensive documents it had reviewed. It confirmed the recommendations made in the letter of 26 April 2021, following the implementation of which, Z would then issue a ESW1 rated as B1.
On 27 April 2021, the resident requested that their complaint be escalated and referred the landlord to their questions in their emails of 10 April and 22 April 2021.
At a meeting with the residents on 29 April 2021, the landlord provided the following statements:
1. Although an EWS1 could not be issued at that time, the buildings remained safe to reside in and it was proactively working with its contractor to obtain a ‘pass’ rated EWS1.
2. The landlord was liaising with the landlord’s contractor as the property was within the warranty period to resolve any fire safety problems identified within the buildings and to recover costs for doing so from the landlord’s contractor and any other responsible parties. Costs that were not recoverable could be passed onto leaseholders but only as a last resort.
3. It warned that pursuant to the lease, costs that were not recoverable could be passed on to leaseholders, as a last resort. The insulation material used in the External Wall Structure in block A was different to that in the resident’s block. The materials used for the resident’s block met the requirements of the building regulations at the time of application and it understood still was.
4. After the Grenfell fire, it reviewed insulation it was installing and where possible would eliminate it for future developments. The materials used was ultimately the decision of the landlord’s contractor as the contract stipulated that the landlord’s contractor had to ensure that the materials were compliant and did not allow the landlord to select the materials. The change took place after works were completed on the block , but before works commenced on the other block. The materials used were still allowable in the current version of the building regulations.
5. The resident’s block would have received an EWS1 B1 rating (PASS) had cavity barriers around the window/door openings been installed by its contractor, and no remedial works would have been required.
6. Due to the different insulation materials, the previous fire consultant had been unable to carry out the EWS1 assessment as they did not have the required expertise.
7. The concern in relation to the closers around the windows which the landlord only became apparent following the review carried out by the fire consultant completed by Z in March 2021.
8. It referred to an issue raised about the sprinkler system.
9. It would meet with the Resident committee on a bi-weekly basis, and summary of these meetings would be circulated by social media. It would also provide written updates to all customers once a month as a minimum. There was also a dedicated officer. It accepted that its response times had been difficult to deliver in recent months, due to the number of enquiries but it intended to recruit more officers.
10. The resident’s block was under 18 metres in height to the top finished floor level. It would provide a summary of the findings and arrange another virtual meeting to discuss these. No immediate interim measures such as a waking watch service or change in evacuation strategy had been recommended by the fire consultant. The apartment buildings continued to undergo the required Fire risk assessments and actions were addressed as a priority. The block was safe for customers to remain living in. The engineer’s report was being reviewed by its fire experts to determine the best option of remediation.
11. It would update the residents if it needed access to their flat. It aimed to have the landlord’s contractor carry out all the identified repair work at their own cost. It believed that the duplex apartment fully complied with the building regulations they were built under.
12. The upgrade in the block was 85% complete, however that there have been some delays with fitting the detectors in the lounge of each flat. It accepted that, historically, some of the information provided to customers in relation to the EWS1 issue had been incorrect. It apologised for the confusion this had caused. It invited anyone that had been directly affected by this issue to contact the landlord.
On 4 May 2021, the landlord wrote to the resident that a review of the building, including the external walls, in relation to fire safety had been carried out in accordance with the latest Government advice. The review resulted in remedial works being required to the building. The works were not complete. It did not intend to pass on the costs as the building was within the defects period but may do so as a last resort.
The landlord wrote to the resident on 7 May 2021. It apologised for the delay in escalating the matter. It would reply within 20 working days and would update the resident if there were a delay.
The resident wrote on or around 7 May 2021 that the landlord had not responded to their email 10 April 2021. They pressed for responses and described the inconvenience caused by the lack of response. The resident stated that their buyer was told on 16 March 2021 that all costs were to be met under the warranty period. The landlord had informed the residents that costs would be passed on as a last resort. It had also advised that the ESW1 report would be provided on 7 May 2021. They were due to complete on their sale. They were concerned they would lose the sale and did not wish to wait a further 20 days.
On 10 May 2021, the landlord wrote to all the residents regarding the meeting of 29 April 2021 regarding the building safety checks and ESW1. It had provided some FAQs and a copy of the EWS1 in order to confirm the current position on the situation and in response to the concerns that residents raised. It invited residents to contact it for any further questions.
The resident wrote to the landlord on 12 May 2021 that they had not received the ESW1. The landlord’s FAQ had stated that the landlord had previously confirmed in writing that there were no issues on the development. Assurances had been given to buyers that the buildings met fire safety regulations and ESW1 requirements. The landlord had responded that it accepted that historically some of the information provided to customers in relation to the ESW1 issue had been incorrect. The landlord had ignored emails from the resident and their estate agent. It had assured them on a number of occasions that the costs would be paid by the landlord’s contractor. If the landlord retracted they would lose the sale and potentially their home. They explained their financial reasons for moving. They could not afford the current property and needed help with childcare. They were seeking redress and an explanation for the landlord’s failures.
The landlord wrote to the resident on 18 May 2021. It attached the FAQ sheet and EWS1 forms that it said it had sent previously. The other information requested was not readily available and it would make enquiries. It invited the resident to provide any correspondence from the landlord in relation to it absorbing the remediation costs so that this could be reviewed.
The resident replied on 18 May 2021 querying what was the incorrect information that had been provided to residents. They referred to communications dated 16 March 2021 and 18 March 2021 (signed by the particular officer) in which it had assured customers in its previous communication that the costs associated with obtaining an EWS1 form would not be passed onto residents.
The landlord wrote to the resident 21 May 2021 attaching the information requested together with the FAQ and ESW1. It accepted that it had incorrectly informed residents that the cost of obtaining an EWS1 would not be passed on to leaseholders. It would try and mitigate any costs being passed on to leaseholders, but any unrecoverable costs may be passed to leaseholders as a last resort.
The landlord wrote to the resident 26 May 2021, stating any compensation would be considered as part of their stage 2 response.
The landlord wrote to the residents on 28 May 2021 enclosing a copy of the fire engineer Z’s report provided by the landlord’s contractor as follows:
1. The recent EWS1 assessment resulted in the buildings being classed with a B2 rating. It was so rated because cavity closers were not included around the windows of the duplex apartments on the top two floors of the buildings. Building regulations stated this was permissible but only where the windows were made from certain materials such as steel or timber. Aluminium which was what has been used was not specifically mentioned. Whilst it had been assured that this was a “technical” issue and provided little in the way of risk to residents, it remained “non-compliant” and therefore it was unable to obtain a B1 rating on the EWS1 form.
2. The contractor had proposed a solution where an additional alarm system would be added into the duplex units only, as an alternative way of meeting the building regulations.
3. Whilst in principle the provision of an upgraded alarm system in a small number of apartments would do this, the solution proposed was a wireless one. It was currently seeking further advice from a Fire Engineer to confirm whether this would meet current regulations instead of the alternative wired alarm system solution. It was obtaining advice from an independent Fire Engineer regarding both the wired and wireless proposals to ensure the selected solution was the most suitable to ensure residents safety and to obtain an EWS1 with a pass rating of B1.
4. It anticipated a response in the coming week. It would then discuss the options with the landlord’s contractor. The block was within the warranty period with the original contractor and it was pursuing the landlord’s contractor to recover all reasonable costs in order to put the building right, address areas of non-compliance and obtain a pass rated B1 EWS1.
5. However, there was a possibility that costs could be sought from leaseholders within the service charge in accordance with the terms of the lease. It had also submitted a claim to the warranty provider as to whether the problem related to the cavity closures could be considered a “structural defect” and was awaiting a response.
6. It continued to prioritise the engagement with its contractor to address the fire safety matters and hoped to have a proposal for residents as soon as it received the recommendation from the independent Fire Engineer. It would arrange a meeting with the residents to discuss the agreed solution, the next steps and respond to any further questions related to the attached report.
On 3 June 2021, the landlord wrote to the resident. It apologised for the delay in its complaint response and would ensure that the element of poor complaint handling was reviewed as part of its response.
The landlord wrote to the resident with its final complaint response on 4 June 2021 to their complaint dated 26 March 2021 and escalated in May 2021.
1. In relation to the service the resident received relating to the safety of their home, it attached its letter sent on the 28 May 2021 and an FAQ sheet provided on the 7 May 2021. It invited the resident to contact the specialist team directly with any queries. The landlord would continue to update the resident. There was to be a update meeting in the following two weeks.
2. It had noted that it was a worrying and frustrating time for homeowners.
3. It was working to hold the contractor accountable in putting the building right at its own cost. Non-recoverable costs could be passed on.
4. Fire consultant Z had put forward a design proposal, to install a communal fire alarm system in the duplex apartments of the building. While it appreciated the residents wanted to resolve the issue as quickly as possible, it was vital that it ensured the proposal was the most suitable and sustainable for the landlord and residents.
5. In relation to the safety of the building and the compliancy of the building at the time it was built, it understood the concerns. The fire engineer did not recommend any temporary fire safety measures were required in the form of either the introduction of a waking watch service or change in evacuation strategy.
6. It apologised for the additional delays and for the distress and inconvenience that has been caused and offered £350 as compensation as follows:

£200 for the resident’s time and trouble
£150 in relation to the landlord’s poor complaint handling

The resident wrote to the landlord on 08 June 2021 as follows:
1. Why had it taken the landlord 4 ½ years to identify that cavity closures, non–compliant materials and fire detectors in duplexes did not exist? It had previously confirmed in writing they had correct fire alarm systems.
2. It had ignored the questions around what liability the landlord had after confirming they did not have to pay and the landlord was attempting to retract this. This had affected a number of people.
3. The landlord had not acknowledged the impact of the events on the sale of their property .
4. The resident queried how many fire risk assessments had taken place?
5. The “stay–put” strategy in the event of a fire was a 30–minute window, assuming the correct materials were in place. Was the fire engineer aware that the duplexes did not have compliant fire alarms, sprinklers or heat detectors? Was the “stay–put” strategy still viable in the circumstances.?
6. How many minutes fire protection did the duplex apartments have, given that aluminium windows and doors did not have any cavity closures, are not compliant and the correct alarm systems are not fitted in the apartments?
The landlord wrote to the resident on 11 June 2021 as follows:
1. The issue surrounding the non-compliant materials and the adequate fire alarms was addressed in its letter dated 28 May 2021. Its letter dated 17 February 2021 explained that the fire alarm system was compliant at the time of the build. Following changes to the regulations in April 2019, this was no longer the case. In order to rectify the issues in relation to the cavity around the windows, the contractor had suggested installing an additional fire alarm system, which would serve as an alternative way to meet the latest building regulations. To ensure this met the regulations, it was seeking independent advice from a fire engineer.
2. The EWS1 form did not apply at the time of the build as the building was under 18 metres. It accepted that the handover process from the landlord’s contractor showed there was room for improvement, which was recognised across the Housing Industry. This was being addressed.
3. It recognised that the residents were incorrectly informed regarding potential costs and it understood that a formal apology had been provided. Its position was that the responsibility fell on the landlord’s contractor with whom it was working to remedy the issues that had been raised.
4. The compensation offered was in recognition of the overall time taken to respond.
5. It appreciated the resident’s concerns regarding the sale and effect on them and others.
6. It set out the yearly dates when fire risk assessments had taken place since construction, from 26 July 2017, including 6 March 2020.
7. It expected that as the report was commissioned by the landlord’s contractor, all information would have been provided to the fire engineer for them to decide which evacuation strategy to use. It had not been made aware of any changes to the “Stay-Put” strategy.
8. It would write again to state how many minutes’ fire protection the apartment had.
9. In relation to the resident stating that they had suffered unnecessary stress and expense, it stated that it fully understood the resident’s frustrations and the financial implications. Should there be any duplicate costs incurred as a result of the misinformation, it would review these if they provided evidence of the financial loss. Once reviewed, a decision could be made regarding potential contributions or reimbursements.
10. Any training or action required on the back of this would be taken with the “utmost seriousness”.
11. As a solution to the resident’s financial situation, it would be able to approve subletting on a temporary basis with a view to the property either being sold or their returning to their flat.
12. In light of the difficulties and the impact on the resident, it offered the maximum compensation within its policy of £500 (£350 time and trouble, £150 poor complaint handling).
The resident replied on 11 June 2021, in relation to the issue of the fire alarms addressed in the landlord’s letter of 17 February 2021. They referred to an authority setting out what the correct alarm system, including additional requirements for duplexes regarding sprinklers which demonstrated the non-compliance at the time of the construction. They asked whether the fire engineer was aware of this. They were concerned the landlord had not been aware of this and the resident had had to undertake the research.
On 24 June 2021, the resident wrote to inform the landlord that their buyer had requested a retention of £2,000 in respect of the remediation costs that could be passed to the leaseholder for works that might be required to provide a B1 pass on the ESW1 Form.
The landlord wrote to the resident on 1 July 2021 as follows:
1. The fire alarm system currently installed within the duplex units complied with building regulations. The system used at the time of the build met the required regulations.
2. It had investigated the matter further, following the information the resident had provided and while it confirmed the regulations were met for the flats, additional measures should have been in place within the duplex units to ensure compliance. It appreciated that this conflicted with what it had stated previously and it apologised for the incorrect information provided and awarded an additional £100.
3. The landlord could not provide a figure as to how many minutes the duplex flat had in relation to fire protection. It was not a figure any qualified fire engineer could provide. It assured the resident that the fire engineer has confirmed that the properties were safe to inhabit without additional measures put in place, such as a waking watch.
4. It reiterated that costs would be passed to the leaseholders but only as a last resort.
5. It increased its compensation as follows:
  1. £350 for the resident’s time and trouble.
  2. £150 in relation to the landlord’s poor complaint handling.
  3. £100 In recognition of the incorrect information it had provided.
On 1 July 2021 the resident wrote to the landlord that their duplex still had the original fire alarm and no upgrade to the alarm system had been carried out and that the handover pack stated that there was a sprinkler system in the duplex apartment but there was none.
The landlord replied on the same day acknowledging the upgrade works to the flats were currently in progress and apologised.
The resident replied that the alarm system was not compliant at the time of construction and it had not been upgraded. They were concerned at the incorrect information. The resident requested confirmation in writing that the alarm system was not in line with building regulations at the time of construction, what alarm system would be installed to comply with building regulations, and that the landlord would be undertaking the works. They also wanted written confirmation that there were no cavity closures and this was also a failure to comply with building regulations.
The landlord replied on 2 July 2021, that it understood the resident’s concerns and frustrations. It explained that the confusion arose due to the difference in requirements of regular flats and duplex units. It was, however, unacceptable that the resident had been provided with incorrect information. The fire engineer’s report stated that the upgraded alarm system would bring the duplex in line with the latest regulations.
The landlord wrote again to the resident on 2 July 2021 that the current system, without any additional measures, was not compliant at the time of the build. The proposed upgrade would bring the duplex units into a compliant position. It could not confirm the position in relation to the cavities as it was not straightforward. It understood that it was compliant under the regulations at the time but not under the EWS1 guidelines. It explained that it was dealt with by a different team.
The resident replied the landlord had confirmed that cavity closures were required, so the building was non-compliant but wanted the landlord to confirm this as part of their complaint.
According to the landlord’s internal emails of 27 July 2021, it had “already” been determined that the costs would not be passed to leaseholders but was awaiting written confirmation before sharing this information. However, as the landlord had not advised “them” (presumably the seller’s or buyer’s solicitors) to hold a retention, it did not think that necessary. The solicitors had been given authority to proceed with exchange and completion “in the usual way”.
According to a letter 11 January 2022, the consultants Z had issued a ESW1 on 7 January 2022 with a B1 (pass) rating.

Chronology regarding:

a)The landlord’s response to the resident’s request for a refund for service charges in relation to window cleaning and concierge services.

b) The landlord’s response to the resident’s report of an alleged GDPR breach by one of the resident’s neighbours.

c) The landlord’s complaint handling.

The resident’s complaint of 25 March 2021 also raised the following:
1. The residents had requested a refund for the window cleaning and they had not received concierge services for a year. Despite chasing on three occasions, they had not received a response.
2. They had reported to the landlord on 10 February 202 that a resident had posted over 40 posters on the estate with their personal details. They were of the view that the landlord had a duty of care to ensure personal information was not shared. The landlord only wrote to residents on the estate more than 6 weeks after the event to tell them not to share personal details.
According to an internal email of 31 March 2021, the landlord had written to all the residents regarding a window cleaning refund for the periods to and including 31 March 2020 on 29 March 2020. It had informed the residents that it was carrying out a review of service charges and rents for the year 2021/22 which would be completed in April 2021. The 2020-21 service charge financial statement would see a correct window cleaning costs apportionment. The letter of 29 March 2021 also dealt with the concierge services affected by the pandemic. The landlord had stated that the team consisted of one operative since the services commenced. The team’s capacity was under review. There would be a consultation with the residents “in due course”. The 2021/22 budget had envisaged a two-operatives team. The final decision would be based on the observations received from the residents.
It had invited comments from residents regarding a temporary adjustment in the ways the team operated during the pandemic period affected by government guidance. It had collated their observations concerning estate coordination services.
In the landlord’s first response to the resident’s complaint of 25 March 2021 on 8 April 2021, in addition to its apology for delayed responses, it stated as follows:
1. The refund for the window cleaning and concierge services was being addressed. This was delayed by the pandemic. The landlord was reviewing the service delivered and the associated costings including the window cleaning costs for the previous financial year 2020-2021. The review would be finalised by the end of April 2021.
2. In relation to its management of the alleged data protection breach by a neighbour, it accepted it was wrong of the neighbour to act as they did. It wrote to the residents in the block to “update them” on acceptable behaviours. It accepted that it could have done this more swiftly. It explained that the delay was due to working at home during the pandemic. It was unable to do more as it had not been able to identify the perpetrator.
The resident wrote on 10 April 2021 that the generic letter was sent to residents 6 weeks after they complained that their data had been breached. The landlord had sent a further letter stating it had been sent in error. In relation to the service charges, they had not received window cleaning for the past 2 and half years and no concierge services for the past year. They requested a refund given they were moving out.
According to the landlord’s internal emails in May 2021, it was investigating the review of the service charges and services and calculating a refund.
In the landlord’s second stage complaint response of 4 June 2021, it responded as follows:
1. In relation to the service charges for the concierge services and window cleaning, revised statements would be sent on 11 June 2021 would show a full reduction of estate coordination services’ charges for the period from 19 March 2020 to 31 March 2020, while the September 2021 statement would show a full reduction of estate coordination services’ charges for the period from 1 April 2020 to 1 July 2020.
2. It appreciated there had also been a delay in supplying the requested information and the resident’s frustrations.
3. In relation to the recent release of personal information by one of the other residents on the estate, the second letter was issued correctly, as some residents received a letter that was sent in error, which was intended for a different estate. The police had not provided any further information.
4. In relation to poor communication since escalating their complaint, there was a delay in escalating the resident’s complaint to stage two. It apologised and explained the delay was due to an “honest mistake” due to confusion over the name on the email address. While the stage 1 response was accurate, there were further issues with communication, therefore it had revised the compensation.
5. As well as revising its compensation for the substantive complaints, the landlord offered £150 in relation to its complaint handling.
In their letter of 8 June 2021, the resident stated that they wanted a refund for all the services they had not received, rather than an adjustment, given they were moving out of the property.
In its letter of 11 June 2021, the landlord stated that “to avoid any confusion”, the landlord would send a further letter to ensure the message regarding divulging personal information was delivered.

Assessment and findings

The landlord’s response to the resident’s concerns regarding fire safety at the property and how this impacted the sale of their property.

The resident’s complaint focussed on their concern with fire safety and therefore whether the block was built in accordance with building regulations, the ongoing fire safety as well as on the landlord obtaining an ESW1, and how that impacted on the sale of their property.
The issue in this case related to the internal cavity walls within, and materials used in construction of, the resident’s building. Gaps behind the insulation in the internal cavity wall meant that the use of aluminium window and door frames did not comply with fire safety requirements. While there had been amendments to the 2010 Buildings Regulations since the construction of the resident’s block, there was no obligation on the landlord to upgrade the building in accordance with amended building regulations. However, the landlord had obligations in relation to fire safety.
A note regarding the landlord’s policies and procedures. The landlord introduced a number of assurances in its March 2020 regarding new builds. Its previous principles regarding new builds relevant to the period of the construction were in a separate document which was not provided to the Ombudsman. However, the March 2020 procedure included a number of principles the Ombudsman would have expected the landlord to apply, or would like to see the landlord apply, including a risk matrix for new builds and a design guide. Likewise, the landlord’s fire safety policy March 2022 policy set out a number of principles that again the Ombudsman would either expect the landlord to have applied such as the landlord ensuring “relevant persons are cognisant of the risk to which they are exposed”.
The issues of fire safety of the building and the EWS1 were separate, though linked. The ESW1 was created as a way of informing owners and lenders about the safety of the building. It was a discretionary and not a statutory scheme. The requirement for an ESW1 was a decision for the lenders rather than a statutory requirement, although it was informed by government advice. The EWS1 itself set out that it was limited in scope and was there to reassure lenders rather than certify overall fire safety.
While there was no obligation, statutory or otherwise, to obtain a ESW1, the landlord accepted its role in obtaining a EWS1 in relation to the resident’s building. Once the Government issued its January 2020 advice, it was not automatic, if perhaps likely, that lenders would immediately, or at all, introduce a requirement for an EWS1 in relation to buildings under 18 metres high. The requirement would also vary from lender to lender. Moreover, the provision of the EWS1 by a landlord was discretionary. However, the Ombudsman would expect the landlord to provide information to its residents about the need of an EWS1, especially given it would be relevant when a resident sought to increase its share in the property, known as “staircasing”. The Ombudsman would expect the landlord to advertise it on its website and consider writing to its leaseholders on learning of the requirement. It is noted that the landlord currently has information on its website regarding the EWS1. The Ombudsman would also expect the landlord to follow up on any assurances it made to acquire one.
The landlord did not provide to this service correspondence with the leaseholders or the resident pre-dating 8 February 2021. However, it is reasonable to assume, judging from the context of the correspondence and the reference to “confirming “ the situation, that it followed a previous communication regarding the issue. The resident referred to correspondence regarding fire safety since January 2021. While it is not clear whether that referred to the then alarm installation programme or the EWS1, or both, it is reasonable to conclude that the first communication regarding the EWS1 was in January 2021. Given it would be expected that the landlord would update residents regarding fire safety and the EWS1, this was an inappropriate delay, some thirteen months after its introduction and one year after the government’s amended advice.
Its explanation why a ESW1 was issued for another block prior to Block A, that the materials used were different, was reasonable and did not suggest the landlord had chosen to prioritise one block over the other.
In terms for the construction of the building, the landlord was entitled to rely on the Certificate of Completion issued by the local authority that the building complied with the 2010 Building Regulations operating at the time of construction.
While there is no duty to upgrade buildings in accordance with amended building regulations, the landlord did have an ongoing duty to ensure a building was safe from fire. The tragic fire at Grenfell, in particular, would have highlighted the risks and issues for social landlords.
It was not disputed that the landlord owed statutory and regulatory duties as well as obligations to ensure the safety of the building. This was reinforced by its obligations set out in its policy and annual reports. It was also under an obligation to ensure it was up to date legislation and good practice it would be up-to-date with government and good practice guidance.
The annual reports referred to a fire safety review having taken place in 2018-2020. It was reasonable that the landlord established a specialist team to deal with fire safety issues and there was evidence that the landlord reviewed its fire safety. The landlord’s letter 17 February 2021 evidenced that the landlord already had planned an upgrade to the fire alarms, although not to the degree recommended by engineers Y and Z. Under the policy such remediation works should have taken place within six months at the latest after identification. The evidence indicates it took place later. However, given a higher specification system was required in order to comply with the EWS1 requirements, there was no evidence that this delay impacted on provision of the EWS1.
However, it is the Ombudsman’s view that the landlord needs to be highly proactive in this area and to provide clear communication to all its residents. The landlord is referred to the Ombudsman’s Spotlight report on cladding which applies to fire safety, in particular in relation to a purely risk-based approach. The evidence indicated that the driver for the landlord’s further investigations was prompted by the landlord seeking to obtain a EWS1 and not the building safety or the government advice of January 2020, which it had a duty to be aware of.
The landlord was put on notice that it had a duty to ensure the safety of the residents, regardless of height, in, or certainly by, January 2020 when the government published its advice, which the landlord’s policy promised it would adhere to, that the landlord should carry out an assessment of buildings safety, regardless of height. While the experts described the risk arising from the specific issue they had identified in relation to the cavity gaps as low, it is the Ombudsman view that the landlord should have been making ongoing pro-active enquiries regarding the safety of the building in January 2020 in any event.
There was no evidence that it had done so. The landlord did not provide its correspondence with its building contractor to this service, despite this service asking it to do so. The landlord blamed the contractor for not keeping it sufficiently updated. The landlord informed the resident that it sought a EWS1 for the buildings on the estate in September 2020. The relevant inspection of the resident’s building was not undertaken until October 2020. However, while it appeared there was little done in that period between January 2020 and October 2020, aside from a fire risk inspection carried out in March 2020, there would have been a number of other factors, such as the pandemic, the complexity of the issues, dealing with a number of parties including the landlord’s contractors and experts and a shortages of fire experts given the demand.
It was not satisfactory to rely on the contractor simply because the building was under warranty. It was not satisfactory for the landlord to state its contractor did not inform the landlord of an issue with the insulation and that the materials were a matter for the contractor. Even if the contractor chose the materials, the landlord had a duty to seek information and reassurance regarding safety. It was also for the landlord to specify its requirements. While the contractor remained contractually liable, and had been responsible for compliance with building regulations, it was for the landlord to make pro-active enquiries and to satisfy itself of the safety of the building.
Once the issue with the construction of the building and the need for an ESW1 was identified, it was reasonable that the landlord relied on the actions of the contractor, given that the evidence showed that the contractor had pursued the matter. By 10 February 2021, Y had proposed a potential solution, which was adopted in the end, namely installing an upgraded alarm system, with a higher specification than planned, in order to provide an early warning of fire. The evidence showed that matters moved on at a reasonable pace given the complexities of the issue. The contractor was obliged to instruct an alternative expert with the relevant qualifications. It was appropriate that the landlord’s contractor and the landlord took their time in making decision about next steps. The remediation steps were a decision to be taken with only very careful consideration. It was reasonable that the landlord and its contractor investigated what would be the optimum solution, given the complex issues to consider including ensuring the solution was suitable from the points of view of safety, compliance with the version of the buildings regulations operating at that time, the requirements of an EWS1, and what would be suitable and convenient for the residents, including opting for a wireless system.
In terms of the safety of the building once the issue with the cavity gaps was identified, the landlord was entitled to accept the reassurances from the fire expert that the risk pending the alarm upgrade was low. The landlord acted reasonably in obtaining reassurance and communicating reassurance to the resident, both singly and collectively. Whether or not in the landlord’s fire safety policy at the time, the Ombudsman would have expected the landlord to have kept its residents informed regarding fire safety, as a matter of good practice. Again, there was a delay in fully informing the residents. Its initial communication focussed on the EWS1 whereas the focus should have been on the fire safety.
The landlord acknowledged that its communication had been poor. However, once it began to communicate in January 2021, its frequency of communication was reasonable, in particular given the subject’s complexities, the landlord was consistent, detailed and accurate in its communications. Its explanation for any delays in its responses to the resident was reasonable and moreover, the landlord was reasonable in accepting there were delays.
However, there were contradictory elements of that communication and it was not always clear. There were occasions when the landlord appeared to misquote the reports or contradicted itself. Its complaint response 8 April 2021 referred to “combustible materials”, whereas the issue was that there were gaps behind the insulation, combined with the use of aluminium rather than steel. At the conclusion of the complaints process, the landlord stated that building regulations were not met in relation to the duplexes at the time of the build although previously it had said that the requirements had changed in April 2019.
There was also confusion in the correspondence about the fire alarm system and sprinkler system in June 2021. It was reasonable of the landlord to seek to ensure it responded to the resident’s questions however, it did not fully answer the questions. The landlord acknowledged that “additional measures”, such as sprinklers, should have been installed.
It had been identified that the combination of gaps in the cavities and the use of aluminium presented a risk, albeit a low risk, which would be remediated by the fire alarm upgrade. The landlord did not clarify whether this constituted a breach of building regulations at the time of construction. The Ombudsman will make a recommendation that, if the resident requests it, the fire safety team itself clarifies the position.
This investigation again refers to the Ombudsman’s Spotlight Report which states: “Effective communication is vital and is especially important given the level of distress an absence of information can cause for residents in these circumstances. The Housing Ombudsman expects landlords to be proactive – providing residents with regular and accurate information on the landlord’s approach to compliance.”
There was no evidence that the landlord deliberately obfuscated the issues. There was evidence that the complaints team endeavoured to seek information from its specialist colleagues and that the landlord had invited the resident to communicate directly with the specialist team, which may have been the better way forward. In a complex complaint, dealing with highly technical issues, it would have been reasonable for the complaints team to check its final draft responses with the specialist team to ensure its information was clear and accurate. The Ombudsman will make a recommendation in that regard.
The resident had a right to know about the risks in the building but also it was right not to worry them unduly. The evidence showed that the experts considered the issue to be a risk low and that the building was safe pending the alarm upgrade. There was no evidence of the landlord reassuring the residents until 29 April 2021. It would have been reasonable for the landlord to be very clear from the outset in relation to the issues of fire safety and also the level of risk. However, it was reasonable that the landlord assured itself of the facts before sharing them with the residents.
The landlord made several assurances, including its round robin letter of 17 February 2021, that it would pay for the remediation works, then backtracked on those assurance. The landlord should a) have kept better track of its own correspondence, b) the landlord should have better considered its approach in relation to its change of approach, which the Ombudsman found to be unduly dismissive and c) there was no evidence of the landlord considering a consultation under section 20 of the Landlord and Tenant Act 1987 in relation to the costs. It would not have been reasonable to reassure the resident that it would meet the costs of remediation and then renege on those assurances. It was, however, appropriate of the landlord to pursue payment through its warranty provider and through its contractors for the remediation works. While the issue of retention caused the resident frustration and worry, the issue was resolved satisfactorily. The evidence showed that there was no necessity, in the end, for the resident to provide a retention in relation to the remediation costs.
The Ombudsman has concluded that the evidence showed that there was some avoidable delay in the landlord a) addressing the fire safety issues and b) being in a position to obtaining a EWS1 and c) communicating with the resident in relation to the fire safety aspects and the requirement for an ESW1. There was delay and lack of consistency and clarify in its communication with the resident. The Ombudsman concluded, however, that once the matter was in motion, it proceeded within a reasonable timescale, given the complexities of the issues.
While, in the end, the resident did not lose their sale, or need to pay the costs of remediation works, the resident had informed the landlord within the complaint correspondence they were moving as their property was not affordable and that they may miss the stamp duty “holiday”, which they did, as the major relief ended 30 June 2021. However, they did not raise the issues at the time of making their formal complaint or request specific compensation, so the landlord did not have the opportunity to consider this in full.
However, the resident did refer to financial implications in their complaint correspondence, in particular towards the conclusion of the complaints process. As a result, the landlord invited the resident to provide evidence of their “duplicate costs” incurred as a result of “the misinformation”, which it would review. There is no evidence that the resident provided that evidence or, if they did, how the landlord responded. Moreover, it is not clear exactly what the landlord was offering when referring to “duplicate costs”. However, the Ombudsman would expect the landlord to follow through its promises to consider financial losses arising from its misinformation and will make a recommendation in that regard.
Given the sale appeared to have gone ahead in July 2021, or shortly after, this suggests that the lender was satisfied with the position on the EWS1, once the EWS1 had been shared with the resident in May 2021. The resident missed the major benefit of the stamp duty relief which ended on 30 June 2021. The conveyancing process did take longer than could be expected. However, the Ombudsman has not seen evidence of any reasons for the further delay from May 2021 to July 2021. Nor is there evidence that the sale was delayed beyond May 2021 due to the fact a EWS1 had not been provided. In the circumstances, the Ombudsman cannot conclude that there was clear evidence of financial loss as a result of any delays by the landlord. In any event, the issue involves matters of negligence which is a legal concept, and therefore outside the remit of this service as the Ombudsman does not decide on issues of negligence.
However, the landlord’s failures in not addressing fire safety and the EWS1 as soon as it may have done and its poor communication caused the resident distress and frustration, as well as concern for both their safety and losing their sale. They were also concerned at facing the risk of paying for the remediation costs. The delays and communication also impacted on their confidence in the landlord. They may have caused the conveyancing process to be more prolonged. The landlord offered £350 for their time and trouble and £100 in relation to incorrect information being provided and the delay in writing to the neighbour, a total of £450, including redress in relation to the issue of the neighbour posting posters. However, the Ombudsman has found that there was no lasting impact on the resident, the risk identified was low and the landlord went in some way to address its failures. The landlord addressed the issue, communicated with the resident both individually and as a group. The matter progressed in a timely matter. The landlord recognised its lack of, and errors in, its communication. It offered compensation. Moreover, the Ombudsman’s awards are not punitive and moderate. In the circumstances, the Ombudsman considers that the compensation was reasonable redress in the circumstances.

The landlord’s response to the resident’s request for a refund for service charges in relation to window cleaning and concierge services

It was appropriate of the landlord to carry out a review of the service charges, including the window cleaning and concierge charges and to inform the residents it was doing so. It was under a duty to only pass on costs it had actually incurred and to carry out a reconciliation of the estimates. It had assured the resident that would amend its charges for the window cleaning on 29 March 2020. While the review would take place over a period of a year, which is lengthy, given its obligations in relation to service charges, it was appropriate that the landlord would carry out a complete review of all the items and that would be effective in the following annual service charge year. It was appropriate to also conduct a consultation with those whose opinion would inform the review. Aside from the landlord’s duty to consult on expenditure over a certain amount, it was reasonable, indeed desirable, to take into account the views of the residents who were paying for the services on how they wanted them to be delivered.
The resident’s complaint raised that they wanted a refund before they moved out. While that was an understandable request, it was reasonable that the landlord would address the block as a whole and it was not practical to address service charges on a piecemeal basis. It was also reasonable to consider the account before providing a refund. The usual way to address service charges in a sale is seek an agreement between seller and buyer through the conveyancing process. In the same way the seller can offer a retention for underpaid service charges, the buyer could agree that a sum be held by the solicitors in case there was a service charge refund.

The landlord’s response to the resident’s report of an alleged GDPR breach by one of the resident’s neighbours.

It was not disputed that the landlord agreed that the actions for the neighbour were wrong, and it would address those actions. Its options were limited given it did not know the identity of the perpetrator. It did what it could by writing a “round robin” letter to all the residents. The landlord accepted that it sent out its letter belatedly. Certainly, by sending out a letter so long after the event would have lost some of its impact. Its explanation it was delayed by the working a home was only partly satisfactory. Its explanation for withdrawing one of the letters that was intended for a different estate was reasonable. It offered redress by offering compensation and writing again to the residents. While the landlord accepted there had been service failure in relation to all of the resident’s complaints, the landlord did not break down its offer accordingly. The Ombudsman considered that £75 was reasonable compensation for its service failure and considers this was offered within its final offer and that in the circumstances, this constituted reasonable redress.

The landlord’s complaint handling

It has been noted that the complaints communication was flawed, given the corrections it made, particularly at the conclusion of the process. It insisted on a number of occasions that the complaint responses relied on what was said by other teams. It used expressions such as “it expected that”. It is not satisfactory or appropriate that the landlord appeared to distance itself from its own communication. The resident would want to be sure that the communications from the landlord were correct and not just the understanding of the complaints team. This was confusing and could potentially put into question the authority of any statements. The complaint responses are statements made on behalf of the landlord, with its authority. It was not reasonable of the landlord not to take ownership of the information it provided. Moreover, this was an area in particular where communication needs to be clear and accurate, while the issues are both technical and complex. There was no evidence of significant impact on the resident, but the Ombudsman will make a recommendation in that regard.
It was unreasonable of the landlord not to break down the components of its offer for compensation. A breakdown would make the offer more transparent.
The landlord acknowledged its delay in escalating the complaint and offered £150 in compensation. The delay, as was the poor communication, was frustrating for the resident. However, the service failure in the complaint handling caused no lasting impact on the resident. In all of the circumstances, given the landlord had also offered £100 for having provided incorrect information, the compensation of £150 for the delay in its response was in line with the Ombudsman’s orders and the Ombudsman finds this constituted reasonable redress.

Determination (decision)

In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, in the Ombudsman’s view, there was reasonable redress in the landlord’s response to the resident’s concerns regarding fire safety at the property and how this impacted on the sale of their property.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in relation to the landlord’s response to the resident’s request for a refund for service charges in relation to window cleaning and concierge services.
In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, in the Ombudsman’s view, there was reasonable redress in relation to the landlord’s response to the resident’s report of an alleged GDPR breach by one of the resident’s neighbours.
In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, in the Ombudsman’s view, there was reasonable redress in relation to the landlord’s complaint handling.

Reasons

There was no dispute that there were delays by the landlord and poor communication with the resident regarding the issues. The Ombudsman considers that fire safety and information about fire safety is of the utmost importance. Fire safety and delay in providing an EWS1 was of serious concern for the resident and made the sales progress frustrating. However, there was no lasting impact on the resident, aside from potentially the increase of stamp duty, which was a matter for legal advice. The landlord recognised its failings and its offer of £350 constituted, in the Ombudsman’s view, reasonable compensation.
The landlord was in the process of reviewing the service charges. It was reasonable that the landlord would await the end of the service charge year before concluding the review. Any adjustment would have been a matter of agreement between the resident and their buyer.
The landlord acknowledged that its response to the resident’s report of the neighbour’s behaviour was delayed and offered compensation. The Ombudsman considered that the compensation of £100 in relation to its delay in writing to its residents was in line with its landlord’s compensation policy and the Housing Ombudsman’s own Remedies Guidance and constituted appropriate redress.
The landlord acknowledged its responses to the resident’s request for escalation of their complaint was delayed and, while there were also issues of poor communication, the Ombudsman finds the compensation offered by the landlord was reasonable. The Ombudsman considered that the compensation of £150 in relation to its complaint handling was, again, in line with its landlord’s compensation policy and the Housing Ombudsman’s own Remedies Guidance and constituted appropriate redress for the failings identified in the landlord’s complaint handling.

Recommendations

The Ombudsman makes the following recommendations:
1. The landlord should pay the compensation it had already offered to the resident, if it has not already done so.
2. The landlord should consider whether to provide a clear explanation to the resident regarding whether the combination of the cavity gaps and the use of aluminium identified by the fire consultants Y and Z in 2021 would have breached the 2013 version of the 2010 Building Regulations at the time of construction.
3. The landlord should write to the resident and invite them to provide information regarding any costs the resident may have incurred due to the resident having been given incorrect information during the conveyancing process and consider meeting those costs.
4. The landlord should ensure that it seeks full disclosure from its contractors as to the safety of the construction of its buildings including improved “handover” as it has itself recognised there needs to be, reviewing the necessary information it needs to obtain, or steps it can take, to confirm current building regulations are met, and ensuring contractual arrangements are in place to facilitate this.
5. The landlord is encouraged to share, if it has not already done so, the Ombudsman’s report on fire safety. *Housing Ombudsman Spotlight report on cladding (housing-ombudsman.org.uk) and considers the recommendations within, if it has not already done so including:
  1. Landlords must review their communications strategies on fire safety and cladding to ensure that it covers the full range of impacts as it is currently understood, and provisions are put in place to ensure that future developments on this issue are proactively communicated to residents and this work is appropriately resourced.
  2. Landlords must ensure that they are proactive in providing appropriate and timely updates on a regular basis, at least once every three months even where there is little or no change.
  3. Landlords should assure themselves that those responding to cladding enquiries or complaints have access to accurate information and an understanding of specialist terms to ensure correct interpretation of technical information
6. In light of the findings in this report, the landlord ensure that it keeps careful track of its own communications in order to ensure that its communication is consistent and, if it does deviate from a previous statements, that it only does so with very good reasons, and acknowledges it has done so and provides a reasonable and satisfactory explanation.
7. The landlord should ensure that its complaints team checks its communication regarding highly technical and particularly sensitive information with its specialist teams before sending to residents and considers referring such correspondence to that team. The landlord should also ensure that such communication is specific and clear and bears in mind ownership of all of its communications.
8. The landlord should break any offers of compensation down into the specific areas of service failure rather than offer global sums, in order to provide transparency.