Metropolitan Housing Trust Limited (202009265)

REPORT

COMPLAINT 202009265

Metropolitan Housing Trust Limited

17 March 2022

Our approach

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

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

The complaint

This complaint is about the landlord’s handling of the resident’s request for an EWS1 form.

Background and summary of events

Background

The resident is a leaseholder who holds a lease dated 11 January 2013. The landlord has described the property as a one-bedroom flat within a five-storey block that is 11.5 metres tall.
The lease agreement obliges the landlord to maintain, repair and improve structural parts of the block, including external walls.
The government issued ‘Advice Note 14’ in December 2018 as part of its Building Safety Programme. 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) and set out checks which owners could carry out to satisfy themselves, and their leaseholders, that their building was safe.
In December 2019, the Royal Institution of Chartered Surveyors (RICS), the Building Societies Association (BSA) and UK Finance agreed a new industry-wide valuation process to help people buy and sell homes and re-mortgage in buildings above 18 metres (six storeys). Form EWS1 was introduced to prove to lenders that external cladding had been assessed by an expert.
The government consolidated ‘Advice Note 14’ when it issued ‘Building Safety Advice for Building Owners’ (BSA) in January 2020. Paragraph 1.4 of this guidance stated that ‘for the avoidance of doubt, building owners should follow the steps in this advice as soon as possible to ensure the safety of residents and not await further advice or information to act’ and paragraph 1.5 stated that ‘the need to assess and manage the risk of external fire spread applies to buildings of any height’.
In response to the guidance, some lenders took the view that, if certification could not be provided to demonstrate compliance with the government’s guidance on fire safety, they would be unwilling to offer a mortgage on properties within these buildings as they would have a zero valuation.
The landlord’s website has a section on ‘EWS1 information’ that shows that it:
1. conducts ‘inspections of buildings on a risk-based programme, ensuring residents are updated before their building is inspected and throughout the process that follows’
2. categorises buildings ‘based on height, type and combination of materials used in the external wall system, the proportion of a building that has cladding, whether it has balconies, and the building occupancy’
3. would not grant permission for privately organised inspections
4. is committed to ‘providing regular updates to residents in buildings that are being inspected, and to answering questions from any residents…. including specific updates to those residents living in affected buildings’.
The landlord had a two-stage complaints procedure at the time of this complaint where it was required to provide responses within 28 calendar days at each stage (this was replaced by a new complaints policy in May 2021).
The landlord has a compensation policy that allows for it to make compensation awards where it has failed to meet service standards.

Summary of Events

The resident wrote to the landlord on 7 September 2020 – she made a request for an EWS1 form as she advised she was in the process of selling the flat. She chased this on 14 September 2020.
The landlord responded to the resident on 2 October 2020 – it set out the background to the risk-based approach it was taking to inspect and complete remedial works to blocks. It gave no specific answer to her request for an EWS1 form or information regarding her block.
The resident wrote to the landlord on 2 October 2020. She expressed concerns that she could lose her buyer, asked for confirmation if her block did not need an EWS1 form (because it was under 18 metres height), requested the results of a survey that was done to buildings on her road six months previously and suggested her block should have had its survey as a neighbouring block had.
The resident chased the landlord for answers to her questions on 8 October 2020, 13 October 2020 and 19 October 2020.
The resident wrote to the landlord on 21 October 2020. She raised concerns that she had been chasing an answer from the home ownership team for two months as she had sold her property and needed the landlord to assist with the EWS1 form. She made a request on 23 October 2020 that the matter be escalated to senior management as nobody had responded to her enquiries about when her block would undergo an inspection.
The landlord wrote to the resident on 26 October 2020. It apologised for the delays to that point and explained that it was unable to give a timescale for when her block would be able to get an EWS1 form as it was less than 18 metres high so was not on the programme for that year. It said it could not give a specific answer as to why the neighbouring building had been subject to a survey but set out all the criteria that it used in its risk-based approach.
The resident wrote to the landlord on 26 October 2020. She suggested that the only reason the neighbouring building had been inspected was because of representations from a politician. She added that another building on her road had a fire recently and that the landlord had failed to prioritise the other buildings in the area in light of this.
The resident wrote to the landlord on 15 November 2020. She referred again to the fire at a neighbouring building in June 2020 and said that the landlord had failed to recognise the risk to her block and suggested that the landlord’s approach to survey only buildings over 18 metres high was insufficient. She added that her property was overcrowded so they needed to move.
The landlord issued a stage one complaint response on 18 November 2020. It concluded that:
1. its safer buildings project manager had contacted the resident earlier that month
2. it had explained that it was working through a risk-based approach to inspections and calling on government action to ensure ‘EWS1 forms are only requested for buildings where they are required and that other forms of building safety evidence are accepted in order to allow residents to move forward with transactions’
3. it would communicate updates on progress and signposted the resident to its website and other contacts for more information about EWS1s, selling properties and re-mortgaging
4. it apologised and said it would act on training needs given it ‘failed to provide you with the information required following a number of requests for this information to be provided to you’.
The landlord wrote further to the resident on 20 November 2020. It expressed sympathy for the resident’s position and said its risk assessment was not solely based on height. It advised that it had liaised with the fire service about the neighbouring building fire and the information it held showed that the fire had not spread beyond the affected flat as designed. It reiterated that the resident’s block was not on the 2020/21 survey programme.
The resident replied to the landlord on 25 November 2020. She said the landlord had not provided a fire risk assessment for the block and asked what its risk categorisation was and whether its cladding met EWS1 standards. She chased this on 27 November 2020 and suggested a company that could complete the EWS1 inspection.
The landlord replied to the resident on 27 November 2020. It advised that it did not permit privately arranged surveys but that it had added the resident’s block to its visual survey programme for that year. It confirmed though that it could not give a date when an EWS1 form would be issued and offered a virtual meeting with the resident to discuss the matter further.
The resident replied to the landlord on 30 November 2020, agreeing to the virtual meeting and asking for details of what the visual survey was.
The landlord and resident met virtually on 4 December 2020 but the resident continued to raise concerns on 8 December 2020 that she had lost a buyer. She asked the landlord for further details on the sub-letting option that it had mentioned to her and the visual survey timescale.
The resident wrote to the landlord on 11 January 2021. She claimed that it had failed to provide her with weekly updates that were promised in the meeting of 4 December 2020 and asked for the date of the visual survey.
The landlord replied to the resident on 12 January 2021. It advised that weekly updates were unlikely to be meaningful but that a visual survey should be completed at the block by the end of March 2021 which would lead to an intrusive survey programme being developed for 2021/22. It added that it would update the resident as to whether her block was in this programme when it was aware of this.
The resident explained to the landlord on 13 January 2021 that she had been told in December 2020 that her block visual survey would be done in the second week of January 2021.
The landlord wrote to the resident on 14 January 2021. It explained that the visual survey was being done to develop its 2021/22 programme for buildings over 11 metres.
The resident advised the landlord on 17 January 2021 that she did not think it had made clear in December 2020 that the visual survey was only to develop the 2021/22 programme.
The landlord replied to the resident on 21 January 2021. It apologised if it had not been clear about the intention behind the visual survey and assured her that it would be willing to discuss this further in a meeting or over the telephone albeit it was unlikely to be able to give her information on her block’s inclusion in the 2021/22 programme until the end of the financial year.
The resident raised continued concern on 27 January 2021 that the landlord had failed to check whether her block was safe and she felt she had been lied to in the December 2020 meeting.
The landlord acknowledged the resident’s recent correspondence on 3 February 2021. It said it had tried to be clear about the process and reiterated its previous advice about the visual survey and 2021/22 programme.
The landlord recorded receipt of a complaint escalation from the resident on 5 February 2021, on the grounds that the stage one complaint response had been inaccurate.
The resident wrote to the landlord on 19 February 2021, requesting an update. The landlord replied on the same day, reiterating that the visual surveys would be finished at the end of March and it would know more about its future plans then.
The resident again requested an update from the landlord on 5 March 2021.
The landlord issued its final complaint response on 8 March 2021. It apologised for the delay in the complaint response and concluded that:
1. it had maintained contact with the resident since the stage one complaint was closed
2. it had updated the resident on 19 February 2021, confirming the visual survey programme was ongoing and due to complete by the end of March 2021
3. it would update her towards the end of the financial year as to whether her block would be on the intrusive programme for 2021/22 and could not offer a timescale for the EWS1 for her property
4. it was working with other landlords and the government to resolve the difficulties faced by residents and was operating a risk-based approach in the meantime.
The resident approached this Service in March 2021, expressing continued dissatisfaction on the grounds that the landlord had refused an external survey on her block despite a fire at a neighbouring block in June 2020 and that it had delayed in starting the first stage of the external surveys in January 2021 as had been promised. She added that the landlord did not know if her block was safe, was unaware what cladding materials were used for the block (and if they were the same as those used at the neighbouring block) and had failed to share a fire risk assessment.

Summary of Events after landlord complaint process

The landlord and resident continued to exchange emails during March-June 2021 as follows:
1. the landlord confirmed in early March 2021 that visual surveys were ongoing and the resident raised concerns that 80% of her block was cladded and she had found that other buildings in the area had a cladding product that was potentially combustible
2. the landlord advised in late March 2021 that the visual survey for the block had been done and it was awaiting the report but it answered the resident’s cladding product concerns in the meantime
3. the resident chased progress in early April 2021 and the landlord advised in mid-April 2021 that it would complete the priority rating process by the end of the month
4. the landlord advised in early May 2021 that the resident’s block was on the schedule for 2021/22 but it would give more information once the programme was formally agreed
5. the landlord advised in late May 2021 that the intrusive inspection was likely to be done in early October 2021 and it would provide more information on this nearer the time.
The landlord wrote to the resident on 30 November 2021, advising it had undertaken building safety checks in August 2021 which concluded that:
1. ‘the review of the eternal wall system shows that it is expected to have met building safety guidance at the time of build’ and ‘due to its height, the type and make of insulation was also compliant at the time of build’
2. ‘the main issue that was noted was that cavity barriers which are designed to limit the spread of smoke and fire were either missing or incorrectly fitted’
3. other issues were identified such as ‘poor fire stopping around service penetrations, and insufficient installation of fire protection devices behind electrical sockets… Issues were also identified with the compartmentalization in the building and missing or incomplete plasterboard which provide fire protection’ and ‘with the fitting of fire doors with instances of unsealed gaps between door frames and walls and the use of inappropriate materials’
4. it was ‘unable to provide a timeframe for when remediation will commence at this time’ but it was ‘likely to be some time before the works are completed’ so it would make sure the building was safe in the meantime and had taken advice from independent fire engineers.

Assessment and findings

The Ombudsman’s Dispute Resolution Principles are:

Be fair
Put things right
Learn from outcomes

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

The Ombudsman’s guidance note on fire safety and cladding sets out that, as the government’s expectations about this matter are only currently detailed in guidance, there is an element of discretion for a landlord as to how and when it chooses to comply. The Ombudsman’s guidance further advises that, when investigating a complaint relating to fire safety and cladding, the Ombudsman will consider the following points:
1. what are the landlord’s long-term plans for compliance with the guidance and are these fair and reasonable?
2. how has it communicated with residents regarding the situation and was this communication appropriate?
3. how has it responded to the individual circumstances of the resident?
When the resident initially approached the landlord in September 2020, the government’s ‘Advice Note 14’ applied to the building as this recommended that building checks were conducted to all properties. This meant that the landlord was expected to carry out checks to ensure that the cladding system was safe and to carry out any necessary remedial works.
It is clear from the landlord’s correspondence with the resident, in addition to information published on its website, that the landlord is taking steps to comply with the government’s guidance in respect of the block. The landlord has advised the resident on several occasions that it is taking a risk-based approach to prioritise blocks for intrusive inspections and that it is considering factors such as building height, cladding type and building occupancy. The Ombudsman recognises that the process to achieve compliance with government guidance is complicated and requires input from experts. Given this and the number of buildings owned by the landlord that require assessment, the Ombudsman is satisfied that the landlord has taken a rational approach to prioritising inspections.
However, there were occasions when the landlord delayed in answering the resident’s enquiries about her block. The resident’s initial request was made on 7 September 2020 but the landlord failed to offer a response until 2 October 2020 and that response only contained standard information about its general approach rather than any specific details related to her block. This was not in accordance with the commitment on the landlord’s website that it would offer ‘specific updates’ to residents in affected buildings and was therefore inappropriate.
Further, when the resident chased specific answers to her questions during October 2020, there continued to be no meaningful response from the landlord until 26 October 2020. This meant that it took the landlord seven weeks to respond to the resident’s request for an EWS1 form – this was an unreasonable period of time, particularly given the resident had advised the landlord that a potential property sale was dependent on the information it could offer.
When the landlord considered the resident’s complaint in November 2020, it recognised this delay, apologised and said it would act on training needs to improve its service in future. Although this indicated that the landlord responded in accordance with the Ombudsman’s Dispute Resolution Principles to offer redress to the resident, the landlord failed to put things right as it continued to leave some of her concerns unanswered. For instance, it did not offer an explanation to her queries (first made in October-November 2020) as to why a neighbouring building had undergone a survey but her block had not, if it could provide a recent fire risk assessment and whether the landlord had factored in the fire at a different neighbouring block into its risk calculations. The landlord’s failure to answer these concerns over the subsequent months was unreasonable and likely contributed to anxiety to the resident as to the fairness of the building risk assessment process and the safety of her property.
Nevertheless, during and after the complaints process, the landlord took reasonable steps to communicate with the resident and offer as much information as it could on where her block was in the visual survey and intrusive inspection programmes. It signposted her to information on alternatives to selling in November 2020, advised her that month that the block would be visually surveyed in 2020/21, met with her in December 2020, offered updates from January 2021 about the visual survey timescale, confirmed in March 2021 that the visual survey had been done and advised in May 2021 that the intrusive inspection would be completed by October 2021. Although there was a discrepancy between the resident and landlord about the content of the December 2020 meeting, these actions demonstrated that the landlord remained willing to update the resident as much as possible and give information to her on options such as sub-letting pending progress with the block inspection.
The landlord wrote to the resident in November 2021 to provide the outcome of the intrusive inspection which indicates that it met the timescale for the survey that it proposed in May 2021. The resident has advised this Service of continued concerns about how the landlord will implement the required fixes from the safety check inspection – a recommendation is therefore made below in this regard.
In summary, the landlord’s risk-based approach to work towards compliance with the government’s guidance on building safety was reasonable as were its efforts to update the resident on its plans to include her block in the 2021/22 inspection programme. However, it delayed unnecessarily in answering the resident’s request for an EWS1 form during September-October 2020 despite the resident’s advice that a property sale was pending. Although it apologised and said it had learned lessons from this, it failed to answer the resident’s questions about whether a fire in a nearby building had been factored into its risk assessment and how another nearby building had been prioritised for a survey.

Determination

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its handling of the resident’s request for an EWS1 form.

Reasons

The landlord delayed unreasonably in answering the resident’s request for an EWS1 form during September-October 2020 and failed to answer concerns she raised in October 2020 about its risk assessment process.

Orders

The landlord to write to the resident to apologise for the services failures identified in this report.
The landlord to pay the resident compensation of £200 in recognition of the inconvenience and time and trouble caused to her by the maladministration in its handling of her request for an EWS1 form.

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

Recommendations

The landlord to write to the resident to update her on progress to comply with the recommendations made in the August 2021 building safety check report, confirming:
1. how the remedial works will be funded
2. the likely timescale for these works
3. how frequently residents will be updated before, and during, works
4. how the landlord is maintaining safety of the block in the meantime.

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