Hyde Housing Association Limited (202114946)

REPORT

COMPLAINT 202114946

Hyde Housing Association Limited

29 June 2023

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about the landlord’s handling of:
1. The resident’s concerns about the fire remediation works, including how long the works took to complete.
2. The resident’s request for an EWS1 form.
3. The resident’s concerns about the level of service charges.
4. The landlord’s complaints handling.

Background

The property is a one bedroom flat in a block, which is over 18 metres in height and has eight storeys. The resident is a leaseholder and the lease began on 7 September 2009.
Under the terms of the lease, the landlord is responsible for maintaining and repairing the structural parts and external walls of the block.
The government issued ‘Advice Note 14’ in December 2018 as part of its Building Safety Programme. In summary, the advice was for owners of high-rise leaseholder buildings where the external wall system (EWS) 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 Institute 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) or below 18 metres where there were concerns about the safety of cladding materials. Form EWS1 was introduced to prove to lenders that external cladding had been assessed by an expert.
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 government consolidated ‘Advice Note 14’ when it issued ‘Building Safety Advice for Building Owners’ (BSA) in January 2020. Paragraph 1.4 of this guidance stated that ‘for the avoidance of doubt, building owners should follow the steps in this advice as soon as possible to ensure the safety of residents and not await further advice or information to act’ and paragraph 1.5 stated that ‘the need to assess and manage the risk of external fire spread applies to buildings of any height’.
In response to the guidance, some lenders took the view that, if certification could not be provided to demonstrate compliance with the government’s guidance on fire safety, they would be unwilling to offer a mortgage on properties within these buildings as they would have a zero valuation.
On 8 March 2021, RICS issued new guidance (effective from 5 April 2021) in relation to the EWS1, which clarified the criteria for deciding whether an EWS1 was needed. In the case of buildings of five or six storeys, an EWS1 form should be required where:
1. There is a significant amount of cladding on the building (approximately one quarter of the whole elevation estimated from what is visible standing at ground level); or
2. There are Aluminium Composite Material (ACM), Metal Composite Material (MCM) or High Pressure Laminate (HPL) panels on the building; or
3. There are balconies which stack vertically above each other and either both the balustrades and decking are constructed with combustible materials (e.g. timber), or the decking is constructed with combustible materials and the balconies are directly linked by combustible materials.
During the fire safety and other major works to the building, the landlord employed a construction consultant to oversee the project. A residents’ representative attended progress meetings with the landlord, the contractor and other project team members and provided feedback to other residents regarding the outcome of the meetings.

Summary of events

On 17 January 2019, the landlord wrote to residents of the block regarding the proposed fire safety works to the block. The letter stated that the work would begin on 21 January 2019 and be completed on 25 October 2019. It also gave a commitment to display the programme of works on the notice boards in the lobby of the block and to update the information each month.
The landlord sent a further update to residents on 23 April 2019, in which it stated that the replacement of all external insulation and fire barriers to the building would be completed by 18 October 2019.
On 18 September 2019, the resident received information from the residents’ representative regarding the landlord/contractor progress meeting held during that week and the information evening held by the landlord on 12 September 2019. The residents’ representative distributed copies of the minutes of the progress meeting and confirmed that the programme had been put up on the notice boards in the lobby. The overview of the programme was that the installation works would now continue into February 2020 and the contractor would be off-site at the start of April 2020.
On 10 February 2020, the landlord wrote to residents of the block to update them regarding the fire safety works. The letter stated that the works had been delayed due to poor weather. It was now anticipated that the cladding replacement programme would be completed by March 2020 and the scaffolding removed from site by April 2020.
On 29 September 2020, the landlord wrote to residents of the block to update them of progress with the building safety work to the block. The letter provided a detailed breakdown of the work phases and confirmed the following:
1. The works consisted of removing and replacing the cladding and insulation, along with internal fire safety works comprising of compartmentation works and timber replacement to the internal courtyard area.
2. Following recent guidance, the landlord was also investigating whether the brick parts of the external wall systems were safe and it would carry out remedial action if required.
3. The cladding and timber replacement works were now due for completion in December 2020 as they had been delayed due to unforeseen balcony maintenance works that needed to be completed before the external wall works could be completed.
4. External wall works to the east and south elevations of the block had been completed and scaffolding removed and works to the other elevations and courtyard walls were at different stages.
5. The landlord had commissioned fire engineers to carry out a desktop investigation of the brickwork sections of the exterior wall. A decision would then be made about whether more intrusive inspections were needed. The intrusive inspections of the brickwork were not covered by the original project.
6. It was anticipated that the initial review of the brick sections would be completed by November 2020.
7. The landlord had installed a ‘waking watch’ patrol to monitor the building while the further investigations of the external walls were being carried out.
8. The landlord had advised the fire brigade of the changes made.
In relation to issuing an EWS1 certificate, the landlord outlined the three-stage process for producing the certificate, which was:
1. Stage one – gathering information to understand the make-up and construction methods used in relation to the building. The landlord stated that this stage would usually take 4-8 weeks.
2. Stage two – a fire engineer would need to carry out an in-depth assessment of the external wall system, which sometimes involved returning to stage one to carry out intrusive surveys. This step would typically take 6-12 weeks.
3. Stage three – this would involve carrying out a final review and deciding on the next steps, for example deciding that remedial work was required.
The letter stated that the landlord was at the initial stage of gathering information about the composition of the external wall system and would probably need to carry out intrusive inspections. The landlord stated that it was difficult to give a timescale on producing the EWS1 certificate at that stage because the detailed investigation had not yet started
The resident submitted a formal complaint to the landlord on 26 October 2020 that the fire wardens employed as part of the ‘waking watch’ service were causing noise by playing loud music in the early hours of the morning. He stated that it had happened previously and he had raised the matter with the landlord on other occasions. He submitted video footage of the wardens creating the disturbance.
On 19 November 2020, the resident wrote to the landlord to say that he had not yet received a response to his complaint about the fire wardens.
The resident wrote to the landlord on 20 November 2020 to complain about the speed of the contractors’ work and to ask about the EWS1 form. The resident stated that he had received an offer to buy his flat but needed the EWS1 form to sell the property. He therefore requested the landlord to provide a date on which he could expect to receive a copy of the EWS1.
On 22 December 2020, the construction consultants employed by the landlord wrote to residents to confirm that the cladding replacement works had been completed and were currently in the ‘snagging’ stages. The letter provided details of the new non-combustible materials that had been used in relation to the insulation and the cladding, but pointed out that no works had so far been carried out to the brickwork. Finally, the letter confirmed that a consultant fire engineer had been appointed to provide an EWS1 form in due course.
On 18 January 2021, the resident wrote to the landlord to explain that the estate agent dealing with the sale of his flat had advised him that they could proceed with the sale of the flat without an EWS1 form in place if they received certain information from the landlord, which the resident set out in his letter.
The landlord replied to the resident on 19 January 2021 and attached a copy of the letter dated 22 December 2020 from the construction consultant, which described the materials used in the replacement insulation and cladding. The landlord suggested that the resident contact the buyer and ask whether this information would be sufficient.
On 15 February 2021, the landlord sent the resident the estimated service charges for 2021-22.
On 16 March 2021, the resident contacted the landlord to say that he was unhappy with the increase in service charges and was concerned about various services such as repairs to the door entry system and the number of lift breakdowns.
The resident informed the landlord on 19 March 2021 that he had received an offer to buy his property.
On 25 March 2021, the landlord wrote to all residents in the block to advise that as the Government continued to bring in new fire safety guidance, it would not be paying for future fire safety work after the current project had been completed. However, the landlord said it would do everything it could to avoid passing on costs for future fire safety work to residents.
The resident wrote to the landlord on 30 March 2021 to say that the estate agents handling the sale of his property had requested answers to the following four questions in the absence of an EWS1 form:
1. Has a review of the building, including the external walls, in relation to fire safety been carried out in accordance with the latest Government advice?
2. Is any remedial work required to the building following the review?
3. Where remedial work was requested as part of the review please also provide the following: Has the work commenced/been completed?
4. Will any costs be passed on to the leaseholders?
The resident chased the landlord for the information on 6 April 2021. The landlord replied to the resident on 6 May 2021 and following an exchange of emails between the resident and landlord, the landlord wrote to resident on 7 May 2021 to confirm:
1. All works completed complied with all government guidelines.
2. The landlord had employed a construction consultant to assess the combustibility of products in and on the building and the findings resulted in the major works that were at the ‘snagging’ stage.
3. The landlord had not produced an EWS1 form at that stage but one was planned as soon as the ‘snagging’ works were completed, and the landlord would share the EWS1.
4. The landlord confirmed that it was covering the cost of the external cladding work.
On 19 May 2021, the resident wrote to the landlord to enquire about progress in producing an EWS1 form. He stated that the estate agent had confirmed that the intended buyer of the property was unable to obtain a mortgage without the EWS1.
On 25 May 2021, the landlord wrote to the resident to confirm that the estimated service charge for 2021-22 was incorrect and it had therefore recalculated the figures, which resulted in a reduced service charge. The landlord apologised for the inconvenience caused by the error.
The resident wrote again on 1 June 2021 to enquire about the EWS1 as he stated that the landlord’s website had not been updated in relation to when the EWS1 would be available, i.e. the website stated that minor ‘snagging’ was outstanding with the fire safety work and the other work being carried out would be completed by July 2021. The landlord replied on 3 June 2021 confirming that it had no further details to add to the website information.
The resident advised the landlord on 11 June 2021 that he had received the latest residents’ update newsletter from the landlord, which had stated that the EWS1 was still 5-7 weeks away. The resident wrote again on 17 June 2021 and queried the latest progress meeting notes, which stated that residents would have to request a copy of the EWS1, whereas earlier advice was that the EWS1 would automatically be issued to residents.
The resident informed the landlord on 18 June 2021 that he was unhappy with the increase in his service charges as he felt that residents were being charged for engineer visits to repair the door entry system, even if repairs were not carried out.
Following a further exchange of emails between the landlord and resident on 21 June 2021, in which the resident requested a date when the EWS1 would be available, the landlord wrote to the resident on 23 June 2021 to confirm there was currently no date for when the EWS1 would be available. The resident replied on the same day to inform the landlord that he was concerned that the stamp duty reduced rate was due to end on 30 June 2021.
On 15 July 2021, the resident wrote to the landlord about the length of time taken by the landlord to complete the works to the block. He advised the landlord he was unhappy with the lack of updates on the landlord’s website regarding completion of the works to the block and he informed the landlord that there was also contradictory information on the website about the expected completion date. He questioned the landlord’s explanation for delays to the works, i.e. poor weather. The resident stated that his health had been affected by the landlord’s handling of the works and requested a clear roadmap of when residents could expect to receive the EWS1.
On 12 August 2021, the landlord replied to the resident’s enquiry about the 2021-22 service charges.
On 24 August 2021, the resident submitted a stage one complaint to the landlord about the following:
1. The disruption to residents’ lives over the four year period that works had been in progress.
2. The intended buyer for his property had withdrawn from the sale because of the lack of communication and updates.
3. He was still waiting for a response to his email of 15 July 2020 when he requested a clear roadmap of when residents could expect to receive the EWS1.
4. The resident said he held the landlord responsible for all costs relating to the sale, including the cost of the management pack, the Energy Performance Certificate (EPC) and his legal costs. He also felt the landlord should be responsible for any deficit between the sale price agreed by the recent buyer who withdrew and any future sale price.
5. He was unhappy with the landlord using “bad weather” as a reason for delays to the project.
6. The resident said he had made complaints about the fire wardens making noise in the early hours and disrupting his sleep.
7. In relation to the service charges, the resident said he had been charged the wrong amount for several months, had been sent the wrong estimate, which had then been corrected and he had been waiting for an update on a service charge dispute since March 2021. On 1 September 2021, the resident sent further emails to the landlord in support of his complaint, including photos and videos.
The landlord sent its stage one reply on 10 September 2021, in which it stated the following:
1. The landlord agreed that it could have replied to emails more quickly and therefore offered the resident £75, which it said was in line with its compensation policy. The landlord said the delay in replying was due to the increased requests for documents by homeowners as a result of “the building safety crisis and stamp duty cuts”.
2. The landlord stated that it was only able to investigate complaints going back six months as per its complaints policy.
3. The landlord provided a chronology of some of the contact that had taken place between its home ownership team and the resident between August 2020 and June 2021.
4. The landlord stated that all residents had been kept fully up to date regarding the works through website updates and had been able to raise queries through its resident liaison officer.
5. The landlord stated that the waking watch patrols had ceased on 7 May 2021 and therefore it was unable to investigate the resident’s complaint about the service. It apologised for the disturbance caused and said that any disturbances would have been dealt with at the time of the complaints and reported back to the monthly residents’ meeting.
6. The delays to the building safety work had been outside of the landlord’s control and had been communicated to residents through written updates, website updates and resident meetings.
7. The scaffolding had to be erected around the block due to the nature of the work.
8. Any timekeeping issues regarding the contractor’s staff would have been dealt with by the onsite managers.
9. The landlord had not advised residents that they would have to pay for the balcony works.
10. In terms of charging the wrong service charges, the landlord confirmed that the service charges were reduced in April 2021, but it did not reduce the direct debit until the July 2021 collection.
11. The landlord had sent a reply to the resident’s service charge enquiry on 12 August 2021. The landlord apologised for the delay in replying.
12. The teams affected by the increase in demand for services had now returned to normal levels, which would now allow them to respond to all communications within service level agreements.
On 21 September 2021, the resident wrote to the landlord to express his dissatisfaction with the landlord’s stage one reply and to request it to escalate the complaint to stage two. The main reasons for the resident wishing to escalate the complaint were:
1. The resident felt that the landlord’s offer of £75 was inadequate.
2. The resident felt that the landlord had not addressed the main part of his complaint, which related to the project that had run for four years and in the resident’s view had been badly managed.
3. The resident felt that his flat sale had fallen through because of poor communication and the EWS1 form not being in place.
4. The resident did not accept the landlord’s explanation about the increased demand for home ownership enquiries causing the delays in replying to emails.
5. He did not accept the landlord’s decision that it would not investigate complaints that were older than six months.
6. The landlord had not responded to the resident’s request for a clear roadmap of when it would provide the EWS1.
7. The resident requested compensation for his costs associated with the sale of his property that was withdrawn, compensation for the impact of the project on his health and compensation to cover any shortfall between the future sale price of his flat compared to the price he was offered by the intended buyer on 19 March 2021.
The resident wrote to the landlord on 22 September 2021 to point out that the project dates on the landlord’s website were not being changed and therefore residents were not being kept updated of changes.
On 27 September 2021, the landlord sent out the actual service charges for 2020-21.
On 30 September 2021, the landlord sent its stage two reply, in which it confirmed that it had reviewed the resident’s complaint and would not be changing its decision. The landlord provided the following timescales relating to the replacement of spandrel panels on the block (these are a type of pre-fabricated cladding panel) and for producing the EWS1:
1. In July 2021, the landlord requested additional information from the consultant fire engineer regarding the spandrel panels;
2. In August 2021, the consultant fire engineer identified that the spandrel panels posed too high a risk and would affect the EWS1 rating for the building;
3. In September 2021, the landlord engaged a contractor to replace the spandrel panels and instructed it to undertake the works;
4. The programme to replace the spandrel panels was scheduled to begin on 5 October 2021 and to be completed by 19 November 2021;
5. The EWS1 form would be produced by the end of November 2021.
In October 2021 (the exact date is unclear), the landlord sent an update to residents of the block regarding the removal of the spandrel panels from the building. The letter included the following information:
1. The main project was now in the final stages, with minor ‘snagging’ issues remaining.
2. In order to obtain a satisfactory EWS1, the landlord had been advised by the fire engineers that the spandrel panels had to be replaced and this work was scheduled to start on 5 October 2021 and finish on 19 November 2021.
3. The EWS1 form would be issued 20 working days after completion of the work.
4. The landlord explained that the EWS1 form would have been issued in August 2021, but following further Government guidance, the consultant fire engineer requested additional information regarding the spandrel panels, which the landlord supplied.
5. The consultant fire engineer concluded in August 2021 that 35 of the 70 spandrel panels had to be replaced because they spanned over multiple floors and contained a combustible insulation strip between the panels.
On 15 October 2021, the landlord sent a notice under Section 20B of the Landlord and Tenant Act 1985 to all residents of the block informing them that they may have to contribute towards the cost of the ‘waking watch’ service from 1 July 2020 to 31 March 2021.
On 22 and 25 October 2021, the resident wrote to this Service to outline his complaint. He explained that, in his view, the project should have been completed much earlier and the delays had affected his mental health. He stated that he was seeking compensation for the impact on his mental health and the losses associated with the sale of his flat not proceeding. He also, stated his dissatisfaction with the landlord’s letter, which suggested that residents might be charged for future fire safety work.
The landlord updated its website on 28 October 2021 to reflect the additional work to replace the spandrel panels. The website stated that the work was still scheduled to be completed by 19 November 2021, with just two of the 35 panels still needing to be replaced. The landlord repeated that the EWS1 would be issued 20 working days after the expected completion date of 19 November 2021.
On 6 November 2021, the resident wrote to the landlord to confirm that he would not accept any costs for building safety work in the event the landlord attempted to pass on the costs.
The landlord updated its website on 17 November 2021 to confirm that the spandrel panel replace works had been completed and that it was working as quickly as possible to produce the EWS1 form.
On 6 December 2021, the landlord wrote to the resident to thank him for his comments on the Section 20B notice and to advise him that, to date, the landlord had not recharged residents any costs for the waking watch service and was not seeking to do so.
On 17 December 2021, the resident wrote to the landlord to enquire about progress in producing the EWS1 form.
The landlord has advised this Service that the EWS1 form was issued to residents on 21 December 2021.
On 12 January 2022, the landlord updated its website to advise residents that the block had received a B1 rating in relation to the EWS1, which meant that the fire risk was deemed to be sufficiently low that no remedial works were required.

Assessment and findings

Scope of the investigation

The resident stated on various occasions to the landlord that his health had been affected by the length of time taken by the landlord to complete the fire safety works to the block. The resident therefore wants to be compensated for the impact of the events on his health. The Ombudsman cannot draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This would be a matter for a court to consider as a personal injury claim. This is in accordance with paragraph 42(g) of the Housing Ombudsman Scheme, which states that such issues are more appropriately addressed by the courts. This Service has therefore not determined whether the events have impacted his health.
The resident has requested the landlord to agree to compensate him for any shortfall between the future sale price of his property and the price that was offered by the intended buyer via the estate agent on 19 March 2021. The Ombudsman’s view is that such a claim would have to be settled by a court as part of a negligence claim brought by the resident. It is not within the Ombudsman’s authority or expertise to determine negligence, liability or compensation claims in the same way as the courts, or to order damages in relation to these, and only a court can offer a definitive and legally binding decision. This is consistent with paragraph 42(g) of the Housing Ombudsman Scheme. The resident may wish to seek independent legal advice should he wish to pursue a claim for damages in relation to negligence. The Ombudsman can assess whether the landlord appropriately considered matters within the timeframe of the complaint, and reasonably responded, applied its policy and procedure, complied with any relevant legislation and followed good practice when reaching decisions – which this assessment goes on to do.
The resident has questioned whether he should be liable for any costs associated with building safety work carried out in the future by the landlord. This Service cannot issue a binding decision in relation to a leaseholder’s liability to pay service charges. As per paragraph 42(e) of the Housing Ombudsman Scheme, the Ombudsman cannot consider complaints concerning the level of rent or service charges. The resident has the opportunity to apply to the First Tier Tribunal, which has the expertise and authority to consider the reasonableness of service charges. The Ombudsman has, however, considered the way in which the landlord handled the resident’s enquiries about service charges.
The resident stated in his stage two complaint that the fire safety work had been ongoing since 2017. Although the landlord has not disputed this, the Ombudsman has not seen any evidence relating to the activities or work carried by the landlord during 2017 or 2018. Therefore, the Ombudsman is unable to investigate the landlord’s actions during these years and determine whether its actions were reasonable. This investigation has therefore focussed on the events from 2020 onwards, but also has made reference to a limited number of events in 2019. The Ombudsman’s decision to focus on the events from 2020 onwards is consistent with paragraph 42(c) of the Housing Ombudsman Scheme, which states that the Ombudsman is unable to consider complaints which were not raised with the landlord as a formal complaint within a reasonable period (normally within six months of the matters arising). In this case, the resident submitted a stage one complaint about the fire safety works on 24 August 2021 and had submitted a complaint about the fire wardens on 26 October 2020.

The resident’s concerns about the fire remediation works, including how long the works took to complete

The Ombudsman’s internal guidance for caseworkers considering complaints about cladding sets out that, 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 Ombudsman’s guidance further sets out that when investigating a complaint relating to the Government’s guidance on fire safety and cladding the Ombudsman will consider the following points:
1. What are the landlord’s long-term plans for compliance with the guidance and are these fair and reasonable?
2. How has it communicated with shared owners/leaseholders regarding the situation and was this communication appropriate?
3. How has it responded to the individual circumstances of the leaseholder?
These points have therefore been considered when assessing whether the landlord’s actions and response to the complaint were fair in all the circumstances.
The evidence shows that the fire safety works were carried out over a prolonged period. The landlord’s update to residents of the block on 17 January 2019 advised residents that the work to the rain screen and render would start on 21 January 2019 and end on 25 October 2019. The end date of October 2019 was repeated in the landlord’s update letter sent to residents on 23 April 2019. However, the residents’ representative attending the monthly progress meetings reported to residents on 18 September 2019 that the works were now projected to continue into February 2020 and the contractor would be off site in April 2020. The residents’ representative confirmed that he had distributed copies of the meeting minutes and confirmed that the programme had been put up on the noticeboards in the lobbies. It is not clear why the programme had been delayed at this stage; however, the landlord sent an update letter to residents on 10 February 2020, in which it explained that 15 working days had been lost due to inclement weather and therefore the new anticipated completion date would be March 2020.
Although, the Ombudsman understands that news of the delayed completion date would have been frustrating for the resident, the evidence suggests that the delay was at least partly due to inclement weather. Therefore, taking into account the poor weather and the complexities involved in cladding and insulation replacement, the delay from October 2019 to the new anticipated finish date of March 2020 was not unreasonable. Furthermore, the measures taken by the landlord to communicate the changes to residents via the progress meetings, notice boards and letters was reasonable.
On 29 September 2020, the landlord wrote to residents to advise them that the cladding and timber replacement works were now due for completion in December 2020 due to unforeseen balcony maintenance works that needed to be completed before the work to the external walls could be finished. Therefore, the evidence indicates that the change to the completion date was due to the additional maintenance work to the balconies. This Service recognises that the impact of the additional balcony works was a lengthy delay in the overall project. However, it is reasonable for a landlord to carry out additional unforeseen work as part of an existing major works project. This avoids the landlord having to arrange a separate contract, which would involve additional time and resources.
It was appropriate for the landlord to write to residents to inform them about the change to the completion date and the reason for this. However, the Ombudsman has not seen any evidence that the landlord wrote to residents before September 2020 to advise them about the change in the project. Given that the previous projected finish date was March 2020, the Ombudsman would have expected residents to receive earlier notification about the change in the finish date in order to ensure residents had the latest information. This was therefore, a shortcoming on the part of the landlord. However, this is mitigated because the evidence suggests that the residents’ representative was still attending the progress meetings and feeding back project changes to the other residents.
The landlord’s update of 29 September 2020 also advised residents that it had commissioned a consultant fire engineer to investigate the brickwork sections of the exterior wall and it was anticipated that this initial investigation would be completed by November 2020. It was reasonable for the landlord to alert residents to the possibility that additional intrusive surveys and remedial works might be needed in relation to the brickwork, which was not part of the original specification.
The construction consultant wrote to residents on 22 December 2020 to confirm that the cladding replacement work had been completed apart from some minor ‘snagging’ work. The landlord had therefore kept to the timescale it had notified residents about in March 2020. The letter also provided residents with details about the new non-combustible materials that had been used to replace the cladding, which was helpful in reassuring residents who may have been concerned about fire safety. The consultant also offered to discuss the completed works with any of the residents’ mortgage lenders if required. This was a helpful offer to residents as it was known at the time that mortgage lenders were being very cautious about offering mortgages where cladding had been used on buildings.
The Ombudsman has seen evidence that in the summer of 2021 the landlord introduced a micro-site as part of its main website to provide residents with updates about its building safety programme. This was an appropriate step taken by the landlord to communicate information to residents about the fire safety works as it meant that residents could readily access information about the project. The evidence shows that on 27 May 2021, the website stated that there were just minor ‘snagging’ issues outstanding and the work was expected to be completed by July 2021. The website therefore provided useful information to residents about the progress of the project. Also, the resident’s email dated 11 June 2021 stated that he had just received the latest resident’s update from the landlord, which indicates that the landlord was still sending updates to the residents. This was appropriate as it meant that all residents, including those without internet access, were receiving updates. The landlord has also confirmed to this Service that monthly progress meetings were held throughout the project with the landlord, contractor and other members of the project team. The meetings were also attended by the residents’ representative, who received copies of the minutes so that he could feed back to other residents. The evidence therefore indicates that the landlord maintained reasonable communications during this time.
The resident wrote on 15 July 2021 to advise the landlord that the micro-site contained two completion dates, i.e. mid-July 2021 and mid-August 2021. This Service has not seen any evidence that the landlord wrote to the resident to acknowledge this discrepancy and confirm it had been corrected and therefore this was a shortcoming on the part of the landlord.
In its stage two complaint response on 30 September 2021, the landlord explained that the project delay was because the fire engineer had investigated the spandrel panels on the building in July 2021, and in August 2021 had recommended their removal. The landlord also stated that the removal of the spandrel panels was due to be completed by 19 November 2021. This Service has seen evidence that the landlord’s website contained information in October 2021 confirming the timescale for removing the spandrel panels. It was appropriate for the landlord to update its website to show when the removal of the spandrel panels would be completed in order to ensure residents had access to the latest information.
In terms of the additional works, it was reasonable for the landlord to follow the recommendation of the fire engineer and remove the spandrel panels as the engineer had identified the panels as a fire risk. Although this added further time to the already lengthy project, it was right that the landlord prioritised the safety of residents by carrying out the work.
The evidence shows that the landlord updated its website on 17 November 2021 to confirm that the spandrel panels replacement work had been completed. The landlord has confirmed to this Service that practical completion of the project took place in December 2021 and all of the scaffolding was removed at this point.
It is clear that the fire safety work to the building was carried out over a prolonged period and this caused the resident frustration, stress and anxiety. The resident submitted photos and videos to the landlord showing instances where some members of the contractor’s workforce appeared to be taking extended breaks and were not in the resident’s view demonstrating a suitable work ethic. The Ombudsman has considered this evidence as part of the investigation, however, there is insufficient contextual information to draw conclusions on whether the behaviour of the contractor and its work methods contributed towards the extended time taken to complete the project. It was reasonable for the landlord to rely on its on-site project team members, such as the clerk of works and site manager, to inspect the workmanship and quality of the contractor’s work.
The Ombudsman appreciates that the fire safety works caused disruption to the resident over a long period of time. However, the evidence shows that the scope of the work changed significantly during the course of the project because of unforeseen maintenance work, changes in Government guidelines on fire safety and new recommendations from the fire engineer. This resulted in more works coming within the scope of the original work specification, which required additional inspections, planning and resources which the landlord had not previously accounted for. In the Ombudsman’s opinion, the landlord’s approach of incorporating the additional works into the original works specification was reasonable in order to achieve compliance with the guidance at the earliest opportunity and to avoid a second set of major works.
In terms of the landlord’s communication during the project, the landlord sent written updates to residents, posted updates on its micro-site from summer 2021 onwards, posted information on the lobby notice boards and arranged for a resident’s representative to attend the monthly progress meetings in order to update residents. The landlord also employed a Resident Liaison Officer as a point of contact for residents and advised the residents of his details in its letter dated 17 January 2019.

The resident’s request for an EWS1 form

On 29 September 2020, the landlord wrote to residents of the block to provide an update on the fire safety works. It outlined the three-stage process for producing the EWS1 form and confirmed it was at the first stage, which was information gathering. It explained that it was difficult to give a timescale on when the EWS1 form would be produced. As the landlord was at the initial exploratory stage of the process, the information provided by the landlord at this stage was reasonable because:
1. The landlord gave a commitment to produce an EWS1, even though it was not under a statutory obligation to produce one.
2. The landlord explained the three-stage process in clear, non-technical language and said it had not yet started the investigations under stage one of the process.
3. Although the landlord did not give an overall timescale for producing the EWS1, it did give an indication by stating the typical timescales for the first two stages. It also made it clear that the timescales for the third stage would be dependant on the findings from stage two and the landlord’s ability to accommodate any remedial works within its wider major works programme.
On 20 November 2020, the resident wrote to the landlord to enquire about the landlord’s progress in producing the EWS1 form. The resident requested the landlord to provide a date when the EWS1 would be available as he had received an offer to buy his property. This Service has not seen any evidence that the landlord replied to the resident’s email. However, the construction consultant employed by the landlord wrote to residents of the block on 22 December 2020 to confirm that it had appointed a consultant fire engineer to produce the EWS1 form “in due course”. It was inappropriate for the landlord not to reply to the resident’s email, but this was mitigated by the update sent to residents by the consultant construction company in December 2020.
On 18 January 2021, the resident requested some information from the landlord as an alternative to the EWS1 form, which was not yet available. The landlord replied on the next day and provided a copy of the construction consultant’s letter of 22 December 2020. The landlord suggested that the resident should ask the intended buyer whether the information would be sufficient. As the EWS1 was not available, it was helpful that the landlord provided alternative information, which indicated a willingness to assist the resident to sell his property.
The resident wrote to the landlord on 30 March 2021 and advised that the estate agent handling the sale had requested answers to four questions. The landlord replied over a month later on 6 May 2021 following an email from the resident on 6 April 2021 chasing a reply. The time taken by the landlord to reply was a shortcoming given that the landlord was aware the sale of the resident’s property was pending and the resident was relying on the landlord to facilitate the sale. However, the quality of the information provided by the landlord on 6 and 7 May 2021 was helpful given the circumstances, i.e. that there was no EWS1 available and works were still ongoing. The landlord answered the four questions submitted by the estate agent, emphasised that all completed works complied with Government guidelines and made it clear that it would produce an EWS1 form following completion of the final ‘snagging’ works.
On 19 May 2021, the resident informed the landlord that the intended buyer of the property was unable to proceed with purchasing the property without an EWS1. During June 2021, the resident sent various emails asking the landlord for a date when the EWS1 would be available. The landlord sent a newsletter update to residents on or about the 11 June 2021 saying the EWS1 was still 5-7 weeks away. The landlord also wrote to the resident in June 2021 to confirm that it could not give an exact date for the EWS1 because it was dependant on completion of the ‘snagging’ work. The Ombudsman understands that the landlord’s reply was deeply frustrating for the resident, particularly as the stamp duty reduction was due to end on 30 June 2021. However, the landlord acted reasonably by giving an indicative timescale and was clear with its messaging that the EWS1 could not be produced until after the ‘snagging’ work was completed.
The resident wrote to the landlord on 15 July 2021 and requested a clear roadmap for producing the EWS1. This Service has seen no evidence that the landlord replied to this request and therefore the resident submitted a complaint on 24 August 2021, in which he referred to his email of 15 July 2021. The lack of response to his email was not addressed in the landlord’s stage one reply sent on 10 September 2021. This was unreasonable as it meant the resident had not received any updates about the EWS1 since the landlord’s newsletter update in June 2021, which had indicated the EWS1 would be available by the end of July 2021.
The resident submitted a stage two complaint on 21 September 2021 and gave one of the reasons for his dissatisfaction as the lack of a clear roadmap for the EWS1. The landlord replied on 30 September and explained that during July and August 2021, the landlord and the fire engineer had been in discussions about the spandrel panels and the fire engineer had recommended their removal. The panels therefore had to be removed before producing the EWS1 in order to avoid a failure rating on the EWS1. The landlord advised the resident that it had engaged a panel replacement contractor and had instructed it to undertake the works. The landlord said it expected the EWS1 to be produced by the end of November 2021. The Ombudsman’s view is that the landlord’s reply given in the stage two letter was reasonable because it gave a clear reason why the EWS1 had been delayed and it gave an expected timescale for producing the EWS1.
The landlord sent a newsletter update to residents in October 2021, in which it gave an update regarding the EWS1. It explained that the EWS1 would be produced 20 working days after the replacement of the spandrel panels, which was due for completion by 19 November 2021. The landlord updated its website on 17 November 2021 to confirm that the spandrel panels had been replaced and it was now working as quickly as possible to produce the EWS1. The landlord has advised this Service that the EWS1 was issued to residents on 21 December 2021. Therefore, the landlord acted appropriately by keeping to the timescale it had set out in October 2021 and demonstrated transparency by sharing the EWS1 with residents.

The resident’s concerns about the level of service charges

On 15 February 2021, the resident received notification of the estimated 2021-22 service charges and this prompted him to contact the landlord on 16 March 2021 to say he was unhappy with the increase in his service charges and with some of the services received. The landlord wrote to the resident on 25 May 2021 to apologise for an error it had found in the estimated service charges and to confirm it had reduced the resident’s service charge as a result. However, it was not until 12 August 2021 that the landlord specifically replied to the resident’s letter of 16 March 2021, ie almost five months after receiving the enquiry. The delay was unreasonable and meant that the resident had to write to the landlord again on 18 June 2021 to say he was unhappy with the service charges.
As part of its reply to the resident’s stage one complaint, the landlord acknowledged the delay in replying to emails, apologised and offered the resident financial redress of £75. In doing so, the landlord acknowledged that things had gone wrong and took steps to put them right, which is in line with the Ombudsman’s dispute resolution principles. The Ombudsman’s view is that the landlord’s offer of £75 was proportionate because although there was a delay in replying which affected the resident, there was no permanent adverse impact on the resident and the landlord had already written to him on 25 May 2021 to advise him of the reduction in the service charge.

The landlord’s complaints handling

The landlord’s complaints procedure states that it has a two stage complaints process. The landlord will respond to both stage one and two complaints within 20 working days.
The resident made a formal complaint to the landlord on 26 October 2020 that the fire wardens employed as part of the ‘waking watch’ service were creating noise in the early hours of the morning and disrupting the resident’s sleep. He submitted video footage of the fire wardens to accompany his complaint. The resident sent a further email on 19 November 2020 to remind the landlord that he had not yet received a reply to his complaint. The resident submitted a stage one complaint on 24 August 2021 regarding various issues, including the lack of response to his earlier complaint about the fire wardens. The landlord replied on 10 September 2021, in which it stated that the ‘waking watch’ patrols had ceased on 7 May 2021 and therefore it was unable to investigate the resident’s complaint about the service. It stated that any disturbances would have been dealt with at the time.
The landlord’s response to this aspect of the resident’s complaint was completely inappropriate as it failed to acknowledge that the resident had complained about the service in October 2020. While this Service accepts that the noise was no longer an issue because the ‘waking watch’ patrols had ceased, the Ombudsman’s complaint handling code makes it clear that where something has gone wrong, the landlord must acknowledge this and set out actions to put things right. In this case, although the landlord apologised for the disturbances caused, the landlord did not acknowledge its failure to properly investigate the resident’s complaint at the time it was made and respond to the resident. The result was that the resident felt his complaint had been ignored by the landlord.
The landlord took 13 working days to reply to the resident’s stage one complaint dated 24 August 2021 and therefore it responded within an appropriate timescale, which was in line with its complaints policy. The landlord also responded within an appropriate timescale in relation to the stage two complaint, which was received on 21 September 2021 and replied to on 30 September 2021.
In terms of the quality of the landlord’s complaint replies, the Ombudsman found that although the landlord had stated in its stage two reply that it would not reverse its stage one decision, it did not set out the reasons for this. The Ombudsman’s complaint handling code says landlords must set out the reasons for any decisions made in relation to stage two complaints. The landlord’s failure to explain clearly the reasons for its decision was therefore inappropriate because it did not demonstrate to the resident that his complaint had been properly reviewed, which prompted him to contact this Service on 22 October 2021 to make this point. The resident’s principal reason for escalating his complaint to stage two was that he did not feel the stage one reply addressed the main point of his complaint, which was about the landlord’s management of the fire safety project and the reported delays in completing the work. The landlord therefore missed an opportunity at stage two of the process to explain why it considered the management of the project and the time taken to complete it to be reasonable.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of the resident’s concerns about the fire remediation works, including how long the works took to complete.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of the resident’s request for an EWS1 form.
In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, and in the Ombudsman’s opinion, there was reasonable redress offered by the landlord in relation to its handling of the resident’s concerns about the level of service charges.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its complaint handling.

Reasons

The fire safety works were carried out over a prolonged period. However, the scope of works changed significantly during the course of the project because of unforeseen maintenance work, changes in Government guidance and additional recommendations from the fire engineer. These changes all undoubtedly contributed towards extending the length of the project. During the project, the landlord maintained reasonable communications with residents through written updates, website information, posting updates on notice boards and arranging for a residents’ representative to attend the monthly progress meetings.
There was a delay in producing the EWS1. However, this was largely because additional works, such as replacing the spandrel panels, had to be completed in order for the fire engineer to produce an EWS1 with a positive rating. The landlord was initially unable to provide a clear timescale for producing the EWS1 because it had to fully investigate the nature of the building materials and whether they were combustible. In the absence of an EWS1, the landlord attempted to assist the resident by providing information about the compliance of the building materials to the estate agent.
There was a delay in the landlord replying to the resident’s emails regarding service charges. However, the landlord apologised for the delays and offered reasonable financial redress of £75. The landlord corrected the error in the estimated service charges for 2021-22 and adjusted the resident’s direct debit amount.
The landlord failed to respond to the resident’s complaint about the fire wardens causing noise disturbances and, to compound matters, it stated in its stage one reply that it could not investigate the complaint about the fire wardens as the ‘waking watch’ service had ceased. Therefore, the landlord failed to acknowledge its failings and made no attempt to put things right. The landlord stated in its stage two reply that it would not reverse its stage one decision; however, it did not explain the reasons for this decision and this left the resident feeling that his complaint had not been reviewed.

Orders

The landlord is ordered within four weeks of this report to pay the resident £300 in relation to its complaint handling.

Recommendation

The landlord should reoffer the resident the £75 for the delays in responding to emails if this has not already been paid.