Clarion Housing Association Limited
31 October 2023
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 is about the landlord’s response to the residents concerns regarding the safety of the cladding at her property.
- This service has also considered the landlord’s handling of the residents complaint.
Background and summary of events
- The resident is a shared-ownership leaseholder of the landlord, the lease is dated 8 August 2018. The property is a third floor flat in a new-build low rise block, below 18 metres tall. The development comprises of two detached buildings, one with two blocks and the other with three, none over 18 metres.
- The government issued ‘Advice Note 14” (the Advice Note”) in December 2018 as part of its Building Safety Programme. In summary, the advice was for owners of high-rise leaseholder buildings where the external wall system of the building did not incorporate Aluminium Composite Material (ACM). The advice set out checks, which owners could carry out to satisfy themselves, and their leaseholders, that their building was safe.
- In December 2019, the Royal Institution of Chartered Surveyors (RICS), the Building Societies Association (BSA) and UK Finance agreed a new industry-wide valuation process to help people buy and sell homes and re-mortgage in buildings above 18 metres (six storeys). The form EWS1 was introduced to prove to lenders that external cladding had been assessed by an expert.
- In January 2020, the government’s Ministry of Housing, Communities and Local Government (MHCLG) issued revised guidance on building safety standards for flats within apartment blocks – “Advice for Building Owners of Multi-storey, Multi-occupied Residential Buildings”. As a result, buildings of any height were potentially in scope for requiring an external wall fire review and completion of an EWS1 (external wall system) form devised by the Royal Institution of Chartered Surveyors (RICS).
- EWS1 certification required a new assessment of the building by a qualified, independent professional to establish if the external wall system met new fire risk standards, or whether remedial work was needed.
- An EWS1 assessment for the building was completed on 12 November 2020 due to the presence of combustible materials, the building was given a B2 categorisation as the adequate standard of safety had not been achieved.
- The landlord’s Fire Safety Policy states that the aims and objectives is to maintain a safe environment and reduce the risk of fire to tolerable levels through various ways including “to reduce the risk of fire to as low as reasonably practicable, for the safety of all residents, staff, contractors and visitors”.
- The landlord’s complaints policy at the time of the resident’s complaint states it has a 2 stage process, it does not detail timeframes at each stage however.
- The landlord’s compensation policy states “payments will be considered on a case by case basis but where we have made mistakes we will take ownership for them”.
Summary of events
- The landlord commissioned consultants to undertake an external façade review and production of an EWS1 form. The consultants visited on 16 September 2020 and on 12 November 2020 it produced the report. The report noted:
- The aim of the report was to provide a holistic fire safety review of the property, in line with the government guidance of January 2020. Its overall view was that the external wall systems that were present had a detrimental impact on the overall fire safety of the building and did not comply with the government advice.
- The external façade consisted of brickwork, high pressure laminate (HPL) cladding and steel balconies. The HPL cladding to sections extended the height of the property; behind the HPL is a Celotex insulation, which along with the HPL is combustible. This presented an unacceptable risk of external fire spread. Remedial action was required to remove and replace the HPL system with materials achieving Euroclass A2 or better.
- Its current RICS EWS1 form rating was B2 meaning that an adequate standard of safety was not achieved, and remedial and interim measures were required. Option B was for buildings where combustible materials were present in the external walls.
- The resident emailed a complaint to the landlord on 4 May 2021, within this complaint, the resident said:
- she had recently found out that her property had a B2 category meaning that the adequate standard of safety had not been met.
- She was “disgusted” that it had not been brought to her attention especially in light of the Grenfell tragedy in 2017.
- She would not have expected a new build development, completed in 2018 to be “built with such products, especially considering that the build was delayed due to the fire safety of the insulation”.
- It was her understanding that changes to government advice introduced in January 2020 meant that all residential buildings of any height needed to be assessed and that an assessment was carried out in November 2020. Yet she had not received any notification from the landlord about this.
- She requested a reason as to why the EWS1 was not signed off correctly and a copy of the outcome of the assessment.
- She concluded by advising she was considering seeking legal advice and wanted an explanation as to why the landlord had not advised residents of this.
- The resident also copied in a councillor to the above complaint, who subsequently emailed the landlord on her behalf, also on the 4 May 2021. He requested an update on the cladding works required to the building.
- The landlord issued a stage 1 response on 10 May 2021. It stated:
- It was sorry the resident had to make a complaint about not being advised that the building had an EWS1 assessment of a B2 and a certificate was not provided.
- It stated a copy of the assessment was attached and a covering letter for her records. It confirmed the building had been assessed as a B2 due to the presence of high pressure laminate cladding and Celotex.
- It had not been advised that additional fire safety measures were required in the building and in the event of a fire, the ‘stay put policy’ would still apply.
- At the time the building was handed over to the landlord, it achieved sign off by a qualified building control professional. At the time of purchase, the government had not published their revised guidance on building safety standards so the current up-dated guidance was not applicable.
- Without the new EWS1 form, lenders may decline to offer a mortgage or re-mortgage on a property. The provision of a EWS1 form was not a mandatory requirement. However, the landlord had instructed EWS1 surveys when requested, when they met the criteria stipulated by RICS, to support homeowners to sell their homes or re-mortgage.
- The EWS1 was instructed on the resident’s estate, as one of the residents had requested the form for this purpose.
- The decision not to make residents aware of the outcome of the EWS1 assessment was “made at a senior level” as it did not want to cause unnecessary distress.
- It was currently completing a national survey of its stock, which would be completed by the end of this year. Following the completion, a programme of further investigation and remediation work would be developed, with the buildings posing the highest risk being prioritised. At that stage, it was not yet in a position to provide details outlining the nature and extent of the works which may be required, or an exact date for when identified works may be completed at the resident’s block.
- It recognised this matter would be of concern to those living at the resident’s development and wished to assure residents that it remained committed to ensuring that any remedial works or upgrades to meet current fire safety standards were delivered as soon as possible. In addition, it would explore all avenues available to minimise the level of any costs that may be recharged to leaseholders. However, it was unable to provide specific details of this at this very early stage.
- On 21 May 2021 the landlord also wrote to the councillor notifying him of the outcome of the EWS1 assessment and reiterating the advice that it provided in the Stage 1 response to the resident.
- The councillor emailed the landlord on 21 May 2021 which the landlord recorded as a stage 2 escalation request. Within this email the councillor said:
- It was not acceptable that the resident would have to wait until December 2021, at the earliest, to receive answers concerning remediation works.
- It was not clear how long after the completion of the stock survey the landlord would be able to formulate the programme of works.
- It was not clear how long after the completion of the stock survey the landlord would be able to formulate the programme of works.
- He was acting on behalf of the resident and asked to escalate the complaint to stage two of the landlord’s internal complaints procedure.
- On 24 June 2021 the landlord sent the resident an email saying that it had received an email on her behalf from the councillor on 22 May 2021 and had escalated her complaint to stage two of its complaints process. It apologised for the delay in responding, which was due to higher than usual numbers. It said that it would provide her with its stage two response within 20 working days.
- The resident emailed the landlord on 22 July 2021 requesting an update on her complaint as she had not received a response as per the landlords last communication to her.
- On 26 July 2021 the landlord sent the resident its stage two complaint response. In its response the landlord:
- Repeated its comments about remedial works and the EWS1 form from its stage one response.
- Said that its consultant had undertaken the initial assessment of the resident’s development which was being used to form the priority for future intrusive inspections. The programme of initial assessments was expected to continue for another 3 to 4 months before all blocks had been reviewed. However, the landlord said that based on the feedback from the consultant, it was likely that the development would be classified as a higher priority for the pending intrusive inspections.
- Advised following the intrusive inspections, a programme for remediation work would be developed. Again, it was unable to confirm at that stage the extent of any works or an exact date for when these would be completed. It would continue to liaise with the residents to update them on any progress when it was in a position to do so.
- In recognition of the delay in responding to the resident’s complaint within the published service level agreement, it would award of £25 compensation. The landlord’s internal correspondence indicates that the Stage 2 response was sent to other residents who had also complained.
- The councillor emailed the landlord on 11 September 2021, advising the resident had not yet received the stage 2 response following his email in May 2021. He requested this be sent to the resident at the earliest opportunity. The landlord acknowledged this email on 14 September 2021 and advised the complaint had now been escalated to stage 2 of its complaints procedure and it aimed to provide a response in 20 working days.
- The landlord sent the resident a second stage 2 response on 20 September 2021. This letter was identical to the letter dated 26 July 2021 but had the following differences:
- It referenced the email from the councillor dated 13 September 2021 rather than the email dated 21 May 2021.
- It removed a reason of dissatisfaction about the “lack of updates from the fire safety team on progress being made”.
- It removed the offer of £25 compensation for the delay in responding to the complaint.
Events following the landlords internal complaints process.
- The landlord provided 2 updates to the resident on 20 September 2021 and 04 January 2022. These updates confirmed:
- It was not yet able to provide details of the nature and extent of the works or an exact date for when the work would be completed.
- A preliminary visual inspection of Motte Lane had been completed and the building had been assigned as a priority for further investigation.
- Although the block was below 18m and the majority of the external façade comprised of brick, further intrusive investigation was required to establish the full wall make-up.
- It was currently in the process of drafting its investigation programme for the next calendar year but also needed to consider any proposed changes to government guidance that was expected in the coming months. Once it had done this, it could provide a timescale for the investigation.
- The resident stated in an update to this service she received a copy of the EWS1 form on 6 January 2022.
- In March 2022, the landlord had commissioned a specialist fire engineer consultant to carry out an intrusive inspection of the building, a report was produced on the 17 March 2022. The specialist consultant found that:
- There was a moderate risk of fire. Accordingly, remedial measures were required and Option B2 of Form EWS1 would apply to the building at that time because if any remedial measures at all were required, regardless of scale, then Option B2 must be selected.
- Although the materials used in the external walls were not in themselves a concern, there were extensive issues with the standard of installation of cavity barriers. Therefore, in its opinion, it could not be ensured that there was a reasonable standard of health and safety for those in and around the blocks. Remedial measures would therefore be required to reduce the fire risk to a tolerable level.
- On 14 April 2022 the landlord wrote to the resident advising that whilst the fire engineer had found that the cladding was of limited combustibility, there was a defect with the construct of the external wall system that meant the EWS1 continued to have a B2 rating. This would require remediation to bring the building in line with current fire safety guidance. The landlord further advised that it would be meeting with the developer to decide the next steps and provide a further update the week beginning 9 May 2022.
- On 24 May 2022 the landlord wrote to residents in the building it said the developer would be discussing the report findings with their fire engineers as soon as possible. Once it had met with the developer it would update residents again.
- On 25 July 2022 the landlord wrote to residents in the building and advised that the developer wished to undertake some sample inspections itself on 3 and 4 August 2022, there would be minor disruption and the contractor would make good any openings afterwards.
- On 14 October 2022 the landlord wrote to residents in the building concerning the issues identified with the cavity barriers and said that the developer was committed to undertaking the remedial works and that they were likely to commence the work in the summer of 2023. The landlord also confirmed that leaseholders and shared owners would not be charged for the costs of these works.
- On 8 February 2023 the landlord wrote to the residents in the building saying that the developers now expected to commence the works towards the end of 2023. It offered, if required to provide supporting letters to mortgage lenders.
- On 3 May 2023 the landlord wrote to the resident after receiving correspondence from this service and advised of the following after reviewing the actions taken following the closure of the residents complaint on 20 September 2021
- although at the time its decision was fair and reasonable, it apologised for any distress and inconvenience which may have been caused by failings in its responses to enquiries about the remedial work and timescales involved.
- Although it met regularly to monitor when it had updated residents, it had not been updating residents on a 3 month basis and it would now make sure residents were updated every three months as a minimum.
- It had been agreed that any building with a B2 EWS1, any building with an active EWS complaint and any building with a negative FRAEW would be added to a communications tracker for regular review.
- If a resident had an individual query, it would be individually addressed, as well as updating all residents in the block.
- It needed more joined up working with the building safety, sales and managing agents teams to ensure residents were provided with answers to their queries, additional support and assistance.
- In light of the above it had arranged £250 compensation, which would be offset against any arrears on the residents account.
- Following this the resident contacted this service 3 times between 17 May 2023 and 22 June 2023. She advised:
- The landlord had told her she was in arrears as the annual rent amount is uploaded at the start of the year and her direct debit payments each month reduce this balance. The £250 was not being used to reduce her direct debit so she didn’t see how she was actually being paid the £250.
- She had sent emails and called multiple times but was not “getting anywhere”.
- Her mortgage broker had told her the landlord had failed to provide all the information required, rather giving “little snippets”.
- If she could not secure a new mortgage rate, she would lose her home as she would not be able to afford the monthly payments.
- The broker advised it still required confirmation that suitable interim fire measures were in situ, details of the works required, the duration of the works and an indication of the expected EWS1 rating after remediation.
Assessment and findings
- Under the Housing Act 1996 where this Service investigates a complaint, it must determine it by reference to what is, in the Ombudsman’s opinion, fair in all the circumstances. In investigating this complaint, we have considered the Ombudsman’s spotlight report on “Dealing with Cladding Complaints” (May 2021), and the landlord is reminded to refer to the report. Whilst there has been changes in government guidance since the report, the report identified three key lessons which still are applicable as the issues with cladding remain and because many residents consequently are still in a position of uncertainty about their housing options and financial liabilities.
a. What are the landlord’s long-term plans for compliance with the guidance, and are these fair and reasonable? The Ombudsman believes it is essential for landlords to provide a clear road map – with timescales – to all residents. The longer the gap between setting out long-term plans and any progress the less likely it is that this will be considered fair and reasonable.
b. How has the landlord communicated with shared owners/leaseholders regarding the situation, and was this communication appropriate? Effective communication is vital, and landlords need to assure themselves that their strategy for this is robust, well-resourced and proactive given the evolving situation and changing circumstances. The risk otherwise is increased frustration and deterioration of the resident and landlord relationship.
c. How has the landlord responded to the individual circumstances of the resident? Has the landlord considered the impact of the situation on the particular circumstances for the resident? The Ombudsman expects a landlord to show empathy for residents trapped in these circumstances and to mitigate the impact where possible. Landlords should always address the
individual circumstances presented in a complaint and, where appropriate, exercise discretion as they would with other complaints. The longer this crisis continues the greater the impact will be on individuals’ life chances, their finances, mental health and well-being.
The landlord’s response to the residents concerns regarding the safety of the cladding at her property.
- As the Government’s expectations in relation to cladding and fire safety are only detailed in guidance there is an element of discretion for a landlord as to how and when it chooses to comply with it.
- The landlord’s first consultants produced the EWS1 form after it inspected the external walls at the development in September 2020. The EWS1 form had a B2 rating which at the time required it to carry out remedial works. Given the landlord’s legal and policy obligations to reduce the risk of fire as low as possible and ensure that the building was in line with fire safety guidance, it was appropriate that the landlord decided it would make further investigations at the resident’s development and then carry out remedial works.
- As the landlord also had a wider responsibility to review the risk associated to other buildings across its housing stock, it was reasonable that the landlord decided to complete a review of all its buildings that may have been effected before carrying out further investigatory works.
- It is important that landlords communicate effectively and provide timescales for the action being taken to resolve cladding and fire safety issues. In this case, it was not until the Stage 1 response of May 2021 that the landlord indicated that building surveys were anticipated to be completed by the end of the year, after which further investigations and works could be prioritised and carried out. At the time this was a reasonable response as the landlord confirmed the process that needed to be followed before works to the resident’s building could be specified and arranged. It also confirmed when it would be able to devise a programme of further investigations and remedial works – after the end of the year when the surveys were completed.
- Within its further correspondence to the resident the landlord explained that it was taking a risk-based approach to prioritising its buildings for inspection and remediation. It was appropriate that the landlord shared this information, to provide an outline of its approach and to demonstrate that its approach in prioritising the inspections and remediation was fair and rational.
- While the Ombudsman accepts that a risk based approach is a reasonable method for prioritising buildings for inspection and remediation, this approach does not take into account that not all leaseholders or shared owners are in the same situation or circumstances.
- The Ombudsman’s Spotlight Report on Dealing with Cladding Complaints says that “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.”
- The landlord’s communication concerning the resident’s fire safety enquires was unreasonable as:
- Although the building had been given a B2 categorisation in November 2020 the resident was not made aware. She had to contact, then subsequently chase the landlord, together with her local councillor for information about the EWS1 and timing of the remedial works, on multiple occasions.
- The updates on the works provided by the landlord on 10 May 2021, 26 July 2021 and 20 September 2021 were only provided to the resident in response to her formal complaint.
- This service has seen no evidence that the landlord communicated any updates to the resident prior to her raising a formal complaint.
- The landlord did not provide an update to the resident after the government announcement of 10 January 2022. Although the update itself may not have been significant to the resident as the building stands below 11 metres in height; this does not negate the landlord’s responsibility to provide proactive, meaningful updates.
- Following its complaints process it only updated the resident on 2 occasions before its updates became generic from May 2022.
- The Ombudsman accepts that the challenges for the landlord in assessing the fire safety of, and responding to concerns about, all the properties within its housing stock are significant. However, for the reasons set out above there was service failure by the landlord in its response to the residents concerns regarding the safety of the cladding at her property.
The landlords handling of the residents complaint.
- Whilst not introduced until after the timeframe of the resident’s complaint, it is of concern that the landlord has in place an ‘interim’ complaint policy that effectively doubles its timeframes for responding to complaints. The interim policy was introduced in July 2022 and according to the landlord’s website remains in effect. This Service appreciates that the interim policy was put in place after the landlord fell victim to a serious cyber-attack however over a year has passed and such a longstanding policy cannot realistically be described as ‘interim’.
- The landlord responded to the residents stage 1 response in a timely manner and addressed more than the points that she raised which was reasonable considering the circumstances.
- The landlord took 24 working days to acknowledge the email from the councillor on 21 May 2021 to the resident and escalate her complaint. Despite having told the resident on 24 June 2021 that it would provide its stage two response within 20 working days it did not do so until 26 July 2021, 23 working days later. This totals 47 working days for the resident to be issued with a stage 2 response, 27 working days outside the 20 working day timescale set out in the Ombudsman’s Complaint Handling Code operated at that time.
- The landlord recorded a further stage two complaint following the councillor making it aware on 11 September 2021 that the resident had not received the stage 2 response. It is not clear why the landlord did this as the councillor clearly requested the original stage 2 response be sent to the resident. Furthermore it is not reasonable for the landlord to remove aspects of the stage 2 response before issuing it again under a different complaint reference. This would have, at the time, caused the resident confusion and uncertainty if the offer of £25 was still valid for its delay in responding back in July 2021.
- This service is aware the landlord has other resident complaints about the fire safety of the building around the same time and provided similar if not identical responses to these complaints. In July 2020 we published our Complaint Handling Code which set out our complaint handling standards for landlords at that time. Landlords needed to ensure that responses provided to residents are specific and tailored to the questions they have asked for rather than responding with standard content. In using generic complaint responses the landlord led the resident to feel they were not being listened to, and further disempowered, which is something the complaints process is intended to address.
- Following its internal complaints process the landlord revised its offer of compensation to £250 and apologised for any distress and inconvenience caused following other determinations by this service. However the resident made this service aware the landlord would offset this against arrears. This approach was unreasonable as given the nature of the charging system in place it did not offer a direct immediate financial remedy for the distress it had caused.
- In summary there was service failure by the landlord in respect of its complaint handling due to the generic responses it gave, its decision to record a second stage 2 and subsequently alter the response letter removing its offer of compensation to the resident.
- In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its response to the residents concerns about the safety of the cladding at her property.
- In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of it complaint handling.
- Following the initial B2 rating on the ESW1 form it was appropriate that the landlord decided it would make further investigations at the resident’s development and then carry out remedial works. It was also reasonable that the landlord decided to complete the review of all its buildings, following a risk–based approach, before carrying out the further investigations and works at the resident’s development. The landlords failure is a consequence of its poor communications following the B2 rating. This left the resident in a distressing situation and not feeling safe in her property.
- There was service failure by the landlord in respect of its complaint handling due to the generic responses it gave, its delay in responding at stage 2, its decision to record a second stage 2 and subsequently alter the response removing its offer of compensation to the resident.
Orders and recommendations
- The landlord is ordered within 4 weeks of the date of this report to:
- Arrange for a senior member of staff to apologise for the failures identified in this report.
- Pay the resident £250 for the distress and inconvenience experienced by the resident as a result of the landlord’s handling of the fire safety works in relation to the resident’s property.
- Pay the resident £150 for the distress and inconvenience experienced by the resident as a result of the landlord’s complaint handling failures.
- The landlord is ordered within 4 weeks of the date of this report to write to the resident:
- Providing an update on the current proposals for the fire safety works being undertaken to remedy the deficiencies identified in the building.
- Providing a timetable for when it expects the various remedial works to commence and be completed.
- Providing a detailed timetable and plan of its future communications going forward about the progress of the remedial works, with updates being provided at least every three months.
- Within 4 weeks of the date of this report the landlord must initiate and complete a review of this case, identifying learning opportunities and produce an improvement plan that must be shared with this Service outlining at minimum its review findings in respect of:
- Its intention to ensure complaint handling staff are aware of how to manage subsequent communications following its final response.
- Its intention to put in place an adequate oversight measure that ensures any offer of compensation previously made is not withdrawn for no reason.
- The landlord should provide evidence to this service that it has complied with the orders above. Any payment should be made in full to the resident and not put onto the residents rent account.