Metropolitan Thames Valley Housing (202017126)

REPORT

COMPLAINT 202017126

Metropolitan Housing Trust Limited

31 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

1. The complaint is about the landlord’s response to the resident’s request to privately arrange an EWS1 survey.

Background and summary of events

Background

2. The resident is a leaseholder of the landlord, a housing association. The property is a flat within a four storey block.
3. The landlord is responsible for the structure and outside of leasehold properties, including to outside walls, and its fire safety procedure confirms it has a risk-based approach to assessment of properties it manages including leasehold. It sees buildings of four storeys as ‘moderate’ risk and buildings of six storeys and higher are classified as ‘high’ risk, although it may take into account other factors including for new builds.
4. 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 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.
5. 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.
6. 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’.
7. 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.
8. The landlord has an EWS1 information page on its website, which this investigation notes since at least September 2020 has stated:
   1. Some leaseholders had difficulty obtaining mortgages due to lenders requiring independent certification that safety requirements are met with respect to buildings’ external wall systems.
   2. It is 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.”
   3. Conducting the inspections where an EWS1 form is required will take a significant period of time, and some lenders requesting them outside of the criteria was increasing the number of buildings affected and exacerbating delays in conducting inspections.
   4. It was not granting permission for ‘privately organised inspections’ due to its approach for its programme of inspections.
9. The landlord has a complaints policy that sets out a two-stage complaints procedure with responses required within 10 working days (at stage one) and 20 working days (at stage two).
10. 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 service failure and time and trouble caused to a resident.

Summary of events

11. In December 2020, the landlord confirmed there was no EWS1 for the block, in response to a query from the resident’s solicitors involved in the sale of the property.
12. On 7 January 2021, the resident’s solicitors contacted the landlord. They proposed for a surveyor the resident had sourced to complete the EWS1, and proposed for the landlord to cover the fee and recharge leaseholders. They asked the landlord to confirm that it agreed to this.
13. The landlord responded on 21 January 2021, after chasing from the resident for which it apologised. It advised that it was required to follow a process for selecting contractors, and was not in a position to instruct contractors sourced by its customers. It provided explanation about the introduction of the EWS1 form and the risk-based approach it was taking to inspect its buildings. It explained that the resident’s block was on a visual survey programme that financial year, in order to prioritise blocks for intrusive surveys the following year. It explained this did not mean the block would be surveyed the next year, but it would be in a better position to confirm timescales. It advised that it recognised the impact of the issue and that it was committed to providing support to its customers with re-mortgaging, selling, staircasing or alternative options such as subletting.
14. There was further correspondence between the resident’s solicitors and the landlord in late January 2021, late February 2021 and early March 2021. The solicitors requested on several occasions for the landlord to confirm its permission for the surveyor to carry out the EWS1.
15. The landlord clarified that it would not grant permission for contractors sourced by its customers and explained it needed to project manage any works at properties that fall under its responsibility. It restated its need to follow process for contractor selection and its approach to inspection of its properties. Later, it stated it had discussed the matter with its legal team and it was not in the position to give permission for customers to arrange their own inspections or obtain quotes from other suppliers. It explained its approach was in case it needed to pursue developers through a legal process and to ensure consistency across its buildings.
16. The resident complained on 7 March 2021. He explained he had identified a contractor the landlord had already used to complete EWS1 surveys, and that he was willing to pay for the EWS1. He was unhappy the landlord had refused permission and had not dealt with the issue in a timely manner. He complained the landlord’s position was unreasonable as it prevented the sale and mortgaging of properties for an undefined period of time.
17. The landlord provided a stage one response on 22 March 2021 and apologised for a delay in the response. It noted the resident was informed it was unable to authorise independent EWS1 inspections, and explained this was based on legal advice to ensure independence and uniformity in inspections of properties it managed. It advised that it recognised the resident’s frustration but was unable to agree there had been a service failure, however it confirmed that it was happy to provide any alternative fire safety information required by potential buyers.
18. The resident responded on 26 March 2021 and restated the complaint. He stated that the legal advice was unreasonable and unlawful, and that the landlord’s position was designed to delay the survey and the need to incur the cost of any consequent remediation.
19. The landlord held internal meetings about the matter and provided a final response to the complaint on 26 April 2021.
    1. It acknowledged that the resident said he would like the EWS1 survey to be arranged, or for the landlord to purchase the property back since he was unable to sell the property without the EWS1 survey, and confirmed it had discussed the matter internally with its building safety team.
    2. It provided explanation about the introduction of the EWS1 form, and explained it was taking a risk-based approach to confirming its buildings complied with safety guidance, with its current focus being higher risk residential buildings and blocks over 18 metres in height. It explained that the resident’s block was significantly below 18 meters in height and was not part of its initial inspection programme for the foreseeable future.
    3. It noted that recent guidance stated that EWS1 forms were not required for buildings of four storeys or below as long as they were not clad in aluminium composite materials, other metal composite materials or high-pressure laminate. It advised that the building was below four storeys and did not meet this criteria, so it was of the view the lenders should not be asking for an EWS1 form. It advised that if the buyer’s lender was prepared to consider other documentation to support the sale its building safety team was happy to assist with this.
    4. It acknowledged the resident’s frustration, but concluded that it would not authorise independent EWS1 inspections or purchase the property.
20. The landlord provided a further response to the complaint on 28 April 2021, to address the resident’s previous property being referred to in the response rather than his current one. It clarified the resident’s current property was over 11 meters in height and had been prioritised for visual inspection in the 2021/22 financial year, after which it would be in a position to confirm further investigations. It restated its position in respect to the EWS1, but apologised for its complaints handling and awarded £25 compensation.
21. In August 2021, the landlord informed this Service that it had completed inspections to its highest risk buildings and was now considering buildings between 11 to 18 metres in height. It advised that an intrusive survey had been arranged to commence at the resident’s block on 22 September 2021, which would establish if the external wall system was compliant with fire safety regulations and if further remediation was required. It explained this was not an EWS1 assessment but was part of the first stages in identifying if a building required any remediation to achieve an EWS1 pass. It advised it was committed to keeping its customers updated and supporting customers looking to sell or re–mortgage but facing difficulties due to lenders requirements, and detailed approaches and avenues it was using to achieve this. It advised that it welcomed a recent government announcement that EWS1 forms should not be requested for buildings below 18 metres, but acknowledged the impact this would have in practical terms was unclear. The resident confirms that a fire safety assessment was carried out in September 2021.

Assessment and findings

22. 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?
23. When the resident’s solicitors approached the landlord in December 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.
24. It is clear from the landlord’s correspondence with the resident and his solicitor, in addition to information on its website, that the landlord has been taking steps to comply with the government’s guidance in respect of the building by taking a risk-based approach to prioritise blocks for intrusive inspections. 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.
25. This investigation understands the desire to progress the property sale and idea to expedite the EWS1, and the landlord was clear from the start that it was unable to accommodate requests for a privately arranged EWS1 survey. While the resident and his solicitors challenged this on multiple occasions across a period of four months, the decision not to permit the privately arranged survey was in line with the EWS1 information on the landlord’s website. The landlord had clearly considered such an approach and set out its position on its website from at least September 2020, before the resident and his solicitor asked it to accommodate the request in January 2021. The landlord also held internal meetings in respect to the matter according to information seen by this investigation, which shows it sought to review its position. While this Service understands the resident’s frustration and the impact fire safety guidance and lenders’ requirements are having, this Service can understand the landlord needing to manage the building inspection in line with its risk-based process, as any findings could have the potential to impact existing programmes.
26. The landlord has provided information to the resident and his solicitors about timeframes in which inspections and intrusive surveys were aimed. The landlord’s confirmation of an intrusive inspection in September 2021 is in line with most information provided about the timeframe, the risk-based prioritisation approach and the building height (apart from information in the stage two response which was swiftly corrected). The eventual September 2021 inspection was eight months after the landlord said in January 2021 that it may carry out the inspection the following year, so appears reasonable. The landlord indicates this could be part of a first stage of investigation of the block under the fire safety programme, so a recommendation is being made to the landlord to ensure the resident is updated about this.
27. There were slight delays at points in the landlord’s responses to the solicitors, however these do not appear sufficient to constitute a significant service failure and caused no significant detriment, therefore the apologies the landlord provided reasonably addressed these.
28. The landlord’s stage two response also made an error when referring to the resident’s former property rather than his current one. The occurrence of such an error throughout the course of events would have been concerning, given the address and correlating building height would be a factor in the landlord’s response to matters. However, the error was restricted to the stage two response and previous correspondence about consideration of the matter refers to the correct address. The landlord’s handling of the matter was therefore appropriate as it swiftly corrected, apologised and compensated for this in a follow up response two days later.
29. Overall, while this investigation understands how frustrating the situation will have been for the resident, the landlord’s response to his request for an EWS1 survey was reasonable. The landlord was taking a reasonable risk-based approach to comply with the government’s guidance on building safety. The landlord’s response to the proposal to privately arrange the survey was consistent with its advertised position on this and accompanied by reasonable explanation. The landlord provided reasonable apology, correction and compensation for some delays and errors that occurred in the course of events, however these had no significant impact on the substantive issues.

Determination (decision)

30. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its response to the resident’s request to privately arrange an EWS1 survey.

Reasons

31. While the Ombudsman understands how frustrating the situation will have been for the resident, the landlord’s position was in line with a reasonable risk-based approach to comply with the government’s guidance on building safety, and consistent with its policy on the matter. The landlord provided reasonable apology, correction and compensation for some delays and errors that occurred in the course of events, however these had no significant impact on the substantive issues.

Orders and recommendations

Recommendations

32. The landlord to review the current status of the block within its fire safety investigations programme, and to write to the resident to update him about this and the timeframe for an EWS1, if available.