Metropolitan Thames Valley Housing (202005847)

REPORT

COMPLAINT 202005847

Metropolitan Housing Trust Limited

26 May 2022

Our approach

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

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

The complaint

The complaint is about the landlord’s:
1. Response to the resident’s fire safety enquiries.
2. Complaints handling.

Background and summary of events

The resident is a leaseholder of a one bedroom flat in a building owned and managed by the landlord. The building is made up of four connected blocks, the tallest of which is 16.4 metres tall. One block is used as sheltered accommodation for elderly people. The building has wooden exterior cladding. There are no health or vulnerability issues recorded on the landlord’s tenancy records for the resident.
The landlord has a corporate fire safety procedure that shows it is required to carry out risk assessments to premises that it owns. It is obliged to conduct risk assessments every year on high-risk buildings, including but not limited to specialised housing properties and properties which are 6 floors and above. Specialised housing includes sheltered housing.
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). 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.
In January 2020 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 meters (six storeys). Form EWS1 is required for buildings under 18 meters where specific concerns apply e.g., 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.
The landlord has an EWS1 information page on its website that says that:
1. EWS1 forms should be required on buildings of five or six storeys where there is a significant amount of cladding on the building.
2. EWS1 forms should be required on buildings of four storeys or fewer where there are ACM, MCM or HPL panels on the building.
3. It was conducting intrusive inspections of buildings as part of the process to make them safe and issue EWS1 certificates but, given the large quantity of its housing stock, it prioritises this 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 (e.g. is it used as a care and support facility)”.
4. It was “committed to providing regular updates to residents in buildings that are being inspected, and to answering questions from any residents”.
Approved document B provides guidance for satisfying the requirements of building regulations relating to fire safety.
At the time of the resident’s complaint the landlord’s complaints procedure required it to respond to complaints within 10 working days at stages one and two.
The landlord has a compensation policy that allows it to make discretionary awards for service failures such as poor complaint handling, delays and failure to meet response times. Its related tariff of discretionary compensation payments document shows that it can award up to £150 for poor complaint handling and up to £350 for time and trouble caused to a resident.
On 7 July 2020 the resident sent an email to the landlord asking it to investigate the fire safety of the cladding on the building.
The landlord replied to the resident on 14 July 2020. In its response the landlord said that:
1. There was a valid, suitable, and sufficient Fire Risk Assessment in place that covered the building.
2. It had assessed the building to be of the following construction:
  1. A purpose-built block of flats comprised of four blocks: the rear two blocks being four storeys in height, the central block seven storeys and the front block five storeys.
  2. Traditional balconies constructed of metal balustrade and decking.
  3. Cladding was present across the building façade and varied from a render system to metal and timber cladding.
3. In accordance with the Advice Note it was currently undertaking a survey of all elements of façade structure, beginning with those buildings over 18m in height, across its property portfolio.
4. Buildings under 18m would be assessed on a per-building risk basis informed by regularly updated fire risk assessments.
5. The building was under 18 m.
6. The landlord had commissioned an investigation of the property, focusing on the areas behind the cladding and render systems at floor levels, junctions with other materials, and party wall lines in order to ensure they met the guidelines found within the advice note. Once the results of this survey were available, it would update all relevant parties.
The landlord sent a further email to the resident on 21 July 2020 saying that:
1. As per the requirements of the government Advice Note, it was undertaking a survey of all elements of façade structure, beginning with buildings over 18m, across its property portfolio.
2. Buildings under 18 m would be reviewed on a per-risk basis informed by regularly updated fire risk assessments.
3. The Advice Note recommended that buildings over 18 m had their external wall systems assessed to determine the presence of any external cladding comprised of combustible materials that could contribute to undue fire spread from one part of the building to another.
4. Whilst the building was under 18m the landlord wanted to make the resident aware that as part of the fire risk assessment process, its surveyors took into consideration the use of materials within properties of any height and, therefore, its surveyors did not consider the building “to make use of any materials that could contribute to the risk of external fire spread or cause risk to the health and safety of the residents.”
5. The landlord was set to formalise its approach to investigative and remedial works in relation to cladding across its property portfolio, including at what stages various properties were likely to be assessed. Once this became available, all interested parties would be updated.
6. All relevant construction issue diagrams had been supplied to its compliance team.
The resident replied to the landlord on 22 July 2020 saying that parts of the building were in fact over 18 m in height. The landlord replied to the resident the same day saying that the appropriate measurement was to the upper accommodation floor and not to the maximum height of the roof and it confirmed that the height of the building had been assessed by a suitably qualified contractor and confirmed to be below 18m to the upper accommodation floor.
On 29 July 2020 the resident sent an email to the landlord asking to raise a complaint about the landlord’s response to his fire safety enquiries. He again queried the height of the building.
On 29 July 2020 the landlord acknowledged the resident’s complaint and said that a response would be provided by 12 August 2020.
The landlord spoke to the resident on 4 August 2020. During the conversation the resident again queried the height of the building and asked to know when the EWS1 inspection would be carried out and when he would receive a copy of the report.
On 11 August 2020 the resident sent the landlord an email saying he had received conflicting information. The landlord’s letter dated 14 July 2020 had said that it had commissioned an investigation of the property in order to ensure that it met the guidelines within the Advice Note. However, he had now been told by another leaseholder in the building that the EWS1 form had not yet been arranged. Given that leaseholders were getting zero valuations for mortgages and were unable to sell their homes as mortgage providers required EWS1 forms, the resident asked the landlord to update him as the EWS report needed to be commissioned as soon as possible.
On 20 August 2020 the landlord sent an email to the resident saying that it was sorry that it had not been able to provide him with an update as it was awaiting a reply from its fire safety team.
On 15 September 2020 the landlord sent the resident its stage one complaint response. In its complaint response the landlord said that:
1. It did not know when all of its buildings were going to be surveyed and how long it would take to produce an EWS1 form.
2. It directed the resident to the EWS1 information page on its website and to its safer building team for further advice.
3. It had provided the resident with a response to his queries about the height of the building on 22 July 2020.
4. It was not upholding his complaint as the resident had been given a response to his queries about the EWS1 form and the measurements of the building in a timely manner.
The resident says that he then requested that the landlord escalate his complaint to the next stage of the landlord’s complaints process, but the landlord closed his complaint.
On 26 March 2021, following contact from the resident, this Service wrote to the landlord asking it to escalate the resident’s complaint about the landlord’s response to his fire safety queries and his requests for an EWS1 inspection to be carried out.
On 26 April 2021 the landlord issued its stage two response to the complaint. In its response the landlord said that:
1. It apologised that the delay in providing an EWS1 form had impacted the resident.
2. It had recently completed visual surveys on all blocks between 11 and 18m in height, which included the resident’s building which was 16.4m tall.
3. Its priority was the safety of all its residents. It had a responsibility to ensure its programme of investigations and any remedial works that were found to be needed following these inspections were conducted based on risk prioritisation.
4. It did not have an official date for when works at the building would take place. However, it was reviewing the outcome of the individual visual surveys and hoped to provide a timescale for completion of works to the building by the end of May 2021.
5. Its safer buildings team was managing the works and would be keeping customers informed throughout the process of delivering the necessary works. The landlord had asked that a member of the team contact the resident during May 2021, once it had an idea of when the works required to the building would take place.
6. It understood that the communication around the provision of the EWS1 form had not been to the standard the resident would have liked, and it was working to improve this. It was committed to improving the communication with all customers affected by this matter.
7. It confirmed that it would provide regular updates to all residents on the progress it made going forward and it would continue to provide further updates for all affected residents via its website.
8. It acknowledged that during the stage one complaint, it had not complied with its own service level agreements and the complaint had been open for around 48 days.
9. It acknowledged that its communication during the complaints process should have been more frequent.
10. It acknowledged the issues that the resident had had in escalating the complaint and that the complaint had taken about 28 weeks before escalation which had also affected the resident’s rights to ask this Service to investigate the complaint at an earlier date.
11. It was reviewing the way it delivered services to its customers. As part of this, it was looking at the working practices and structure of its complaints team, with the aim of ensuring it delivered a more effective service for its customers. It was confident these changes would be embedded within the next twelve months.
12. It had provided feedback to the management within its customer care team regarding the initial handling of the complaint. This would be fed back appropriately and monitored in monthly performance reviews going forwards.
13. Its overall management of the EWS1 issue had been to an acceptable standard, given the unprecedented circumstances surrounding the issue.
14. As there had been failings from its Customer Care team and in its overall communication it partially upheld the complaint and offered £150 compensation for its poor complaints handling and £200 compensation in recognition of the time and trouble the resident had incurred in escalating the complaint.
15. It apologised for any inconvenience and distress that the resident may have experienced because of the issues raised within his complaint.
The landlord’s complaint response dated 26 April 2021 was its final response to the complaint, confirming that the landlord’s internal complaints procedure had been exhausted.
During June 2021 the resident sought independent guidance on determining the height of the building in accordance with approved document B and now accepts that the height of the building is below 18 metres.
On 23 August 2021 the landlord sent the residents in the building a letter saying that it would be carrying out intrusive survey inspections externally, in communal areas and also in individual flats in order to inspect the walls. The intrusive survey inspections were carried out in September 2021.
During the course of this investigation the resident has informed this Service that on 7 December 2021, following a virtual meeting with the residents in November 2021, the landlord wrote to the residents saying that its initial investigation of the building had highlighted several deficiencies. The landlord said that “These issues will need to be put right before a passed EWS1 can be achieved”. The landlord also said that it wasn’t in a position to provide a firm schedule for remediation works to be carried out, but it was committed to keeping customers updated on a regular basis.

Assessment and findings

In reaching a decision about the resident’s complaint we consider whether the landlord has kept to the law, followed proper procedure and good practice, and acted in a reasonable way. Our duty is to determine complaints by reference to what is, in this Service’s opinion, fair in all the circumstances of the case.
The Ombudsman’s role is to investigate complaints brought to it that have exhausted a landlord’s internal complaints process. This investigation report, therefore, concerns the matters which were the subject of the resident’s formal complaint dealt with in the landlord’s final response dated 26 April 2021.

The landlord’s response to the resident’s fire safety enquiries

The Ombudsman’s Spotlight Report on Dealing with Cladding Complaints published in May 2021 says:
1. It is clear most landlords are taking a risk-based approach to inspections and, whilst this is rational, these plans do not appear to adequately consider the broader implications for all residents, especially those living in buildings below 18 metres. It is essential for landlords to provide a clear road map, with timescales, to all residents.
2. Effective communication is vital, and landlords need to assure themselves that their strategy for this is robust, well-resourced and proactive.
3. Landlords should always address the individual circumstances presented in a complaint.
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.
It is clear from the landlord’s correspondence with the resident that the landlord intends to comply with the Government’s guidance in respect of the building and to obtain form EWS1. This is because the landlord has now inspected the building and has said that it will be completing the remedial works identified in the inspection. This is appropriate as, while the guidance is not a legal requirement, it has been established as best practice in relation to building safety and form EWS1 is required by lenders.
Within its correspondence to the resident and on its website the landlord explained that it was taking a risk-based approach to prioritising its buildings for inspection and remediation considering height, occupancy and known building materials. It is appropriate that the landlord has shared this information, to provide an outline of its approach and to demonstrate that its approach in prioritising the inspections and remediation is fair and rational.
While the Ombudsman accepts that a risk based approach is a reasonable method for prioritising buildings for inspection and remediation in relation to Advice Note 14, the landlord’s approach does not take into account that not all leaseholders are in the same situation or circumstances. It is also not clear from the evidence whether, in its prioritisation for inspecting buildings the landlord took into account that the building contained sheltered housing for elderly people, despite the statement on its website that prioritisation would take into account “the building occupancy (e.g. is it used as a care and support facility)”.
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:
1. It informed the resident on 14 June 2020 that it had commissioned an investigation of the property in order to ensure it met the guidelines found within the Advice Note and said that once the results of this survey were available, it would update all relevant parties. However, there is no evidence that the landlord had in fact commissioned an investigation of the property and its subsequent communication contradicted its letter of 14 June 2020 as:
  1. On 21 June 2020 it told the resident, that it was inspecting all buildings over 18 metres and that buildings under 18 metres would be reviewed on a per risk basis.
  2. In its stage one complaint response on 15 September 2020, it said that it did not know when all of its buildings were going to be surveyed and how long it would take to produce an EWS1 form.
2. There is no evidence that the landlord provided any updates on the inspection of the building to the resident until its stage two complaint response on 26 April 2021.
3. Despite informing the resident in its stage two response that it would update him by the end of May 2021 with a timescale for completion of works to the building there is no evidence that the landlord provided any update to the resident until it wrote to all the residents in the building on 23 August 2021 concerning the upcoming intrusive survey inspections.
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. It also accepts that the resident wasn’t seeking to sell the property and therefore in immediate need of an EWS1 form. However, for the reasons set out in paragraphs 36 and 38 there was maladministration by the landlord in its response to the resident’s fire safety enquiries.

The landlord’s complaints handling

The landlord has acknowledged that there were failings in its complaints handling as:
1. Its stage one complaint response was issued after 33 working days, 23 working days after the 10 working days timescale set out in its complaints policy. However, the landlord had contacted the resident after 16 working days to apologise for the delay.
2. It is unclear when the resident asked to escalate the complaint to stage two of the landlord’s complaints procedure. However, the landlord acknowledged in its stage two response that the escalation had taken over 28 weeks. The stage two response was therefore issued at least 140 working days after the resident asked to escalate the complaint and at least 130 working days after the 10 working day timescale set out in the landlord’s complaints procedure.
As a result of the landlord’s complaint handling failures the resident incurred time and trouble in having to contact this Service.
When there are failings by a landlord, as is the case here, the Ombudsman’s role is to consider whether the redress offered by the landlord (acknowledgment of failings, an apology, compensation and review of its complaints team) put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles; be fair, put things right and learn from outcomes.
The landlord acted fairly by acknowledging its complaints handling failures and apologising to the resident.
The landlord offered the resident compensation in the sum £150 compensation for its poor complaints handling and £200 compensation in recognition of the time and trouble the resident had incurred in escalating the complaint.
The landlord acted appropriately by offering the sum of £150 for poor complaint handling as it was the maximum amount set out in its discretionary compensation payments for poor complaint handling.
The landlord also acted appropriately in offering the sum of £200 for time and trouble as that sum was within the range of awards set out in its discretionary compensation payments to compensate for time and trouble taken to complain which wouldn’t have happened if the service failure hadn’t occurred.
The total amount of compensation of £350 is also within the range of awards set out in the Ombudsman’s guidance on remedies where the Ombudsman has found considerable service failure or maladministration, but there may be no permanent impact on the complainant. Examples could include significant failures to follow complaint procedure or escalate the matter, such as in the resident’s case.
The landlord demonstrated that it had learnt from outcomes as:
1. It was reviewing the way it delivered services to its customers.
2. As part of the review, it was looking at the working practices and structure of its complaints team.
3. It anticipated making changes within the complaints team within the next 12 months.
4. It had provided feedback to the management of the customer care team regarding the initial handling of the complaint and the issues would be monitored in monthly performance reviews going froward.
Therefore, for the reasons set out in paragraphs 43 to 48 the landlord’s response to this aspect of the complaint was proportionate to the impact that its failures had on the resident, and the landlord has made redress to the resident which resolves the complaint satisfactorily.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of the complaints about the landlord’s response to the resident’s fire safety enquiries.
In accordance with paragraph 55 of the Housing Ombudsman Scheme, the landlord has offered reasonable redress for the failures identified in its complaints handling.

Reasons

The landlord provided contradictory information to the resident about his building and it is unclear how it prioritised the block for an EWS1 survey given the building occupancy. It also gave inconsistent information to the resident as to when an inspection of the block was likely to be undertaken and failed to keep the resident updated.
The landlord has made redress to the resident which, in the Ombudsman’s opinion, satisfactorily resolves the complaint about its Complaints handling.

Orders

Within four weeks of the date of this report the landlord is to write to all the residents in the building:
1. Providing an update on the works being undertaken to remedy the deficiencies identified in the building.
2. Providing a timetable for when it expects to carry out the various remedial works.
3. Setting out a clear timetable detailing how and when the landlord will communicate with residents going forward about the progress of the remedial works, with updates being provided at least every three months.
Within four weeks of the date of this report the landlord is to pay the resident compensation of £250 in recognition of the distress and inconvenience caused to him by the identified failures in its response to his fire safety enquiries.
The landlord should confirm compliance with these orders to this Service within four weeks of the date of this report.