Metropolitan Thames Valley Housing (MTV) (202107752)

REPORT

COMPLAINT 202107752

Metropolitan Thames Valley Housing (MTV)

28 March 2024

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:
1. the landlord’s handling of a fire in the communal bin store.
2. the landlord’s handling of the associated complaint.

Background

The resident is a shared owner of a flat in a purpose-built block of around 50 flats over 6 floors.
The block is owned by a separate freeholder (‘the freeholder’) who lets the whole building to Clarion Housing Association which is a private registered provider of social housing (‘the leaseholder’). In turn, the leaseholder has leased the flat to the resident’s direct landlord in this case (‘the landlord’). The landlord has a shared ownership lease with the resident. A diagram is attached in Annex 1.
The evidence produced to the Ombudsman shows that the leaseholder inspected the vents in the block and reported on them on 6 November 2019. This found that 1 of the automatic smoke vents by the resident’s flat was not in working order. Three other vents in other parts of the building were also not in working order.
The leaseholder arranged for a fire risk assessment to be completed in 2020. The report produced on 17 December 2020 found:
1. Normal fire hazards (e.g. potential ignition sources) for this type of occupancy, with fire hazards generally subject to appropriate controls (other than minor shortcomings).
2. An outbreak of fire was unlikely to result in serious injury or death.
3. Risk reduction measures were required.
There is no evidence, however, that the work from the report in November 2019 had been completed. Nevertheless, the leaseholder inspected the automatic vents on 15 January 2021. It found that all overrides worked, and the windows operated correctly, but two actuators failed on the first and second floors. The Ombudsman has not seen evidence that the landlord asked the leaseholder for evidence that these works were completed.
On 28 January, 9 February and 10 February 2021, the landlord’s Fire Safety Technical Assistant wrote to the leaseholder to say that the fire risk assessment was overdue. The leaseholder responded on 10 February 2021 with a copy of the risk assessment.
The evidence shows that the leaseholder obtained a fire risk assessment of the block on 23 July 2021. The report was issued on 3 August 2021 and the findings were:
1. The premises were secure against the risk of arson by outside intruders. The bins were stored in a suitable location.
2. There were good levels of house-keeping with escape routes clear of trip hazards and no hazardous materials within the communal areas.
3. There was emergency lighting and an automatic fire detection system in the building.
4. As regards the automatic ventilation system, the report stated:

“Ventilation to the escape stairwell is provided via Automatic opening vent (AOV) to the ceiling head of stair 1. Stair 2 is provided with an AOV window to the top floor side wall. Ventilation to corridors on the 1st and 2nd floor have an AOV windows at each end of the corridor. Ventilation to the 3rd and 4th floor corridors are provided with openable windows.”

There were fire extinguishers in the building.
The fire escape routes were satisfactory and led to a place of safety.
The stairwells benefitted from adequate ventilation.
The fire exit strategy for the building was ‘stay put’.
The intumescent strips on the flat doors have been painted over. It was recommended that the seals be refitted.
All common area fire doors were in good condition.
There were excessive gaps under the electrical cupboard doors. It was recommended the gaps be reduced.
The block required ‘do not use the lift in the event of fire’ signs, as well as electrical safety signs on the electric cupboards.
The bin chute on the first floor had a large gap between the chute and ceiling and remedial work was required to correct this.
The fire safety management was appropriate.
The fire prevention measures observed were ‘normal fire hazards’ for the type of occupancy, with hazards generally subject to appropriate controls (other than minor shortcomings)
Taking into account the nature of the building and occupants (general needs) as well as the fire protection and procedural arrangements observed at the time of the assessment, the consequences for life in the event of a fire would be ‘extreme harm’. This means there would be significant potential for serious injury or death of one or more occupants.
The risk to life from fire at the premises was ‘substantial’. This meant that considerable resources might have to be allocated to reduce the risk.

The events leading up to the fire

The residents of the building raised concerns about the locks on the bin store. The resident states that the leaseholder changed the locks on the bin store on 8 February 2021. She states that the lock failed which left the bin store unsecured and allowed non-residents to access the basement. The resident asserts that she, and the other residents of the block, regularly reported this to the landlord and the leaseholder. The landlord states that a repair was raised to reinstate the lock on the bin store on 2 March 2021. It said that the leaseholder’s Technical Inspection Officer attended and confirmed the locks were operational.
On 17 March 2021 the leaseholder sent a letter to the residents in the block, noting the bin store door lock had been replaced with a key code to add additional security. It explained that the keypad was no longer working and would take 2-3 weeks to repair.
On 20 March 2021, the resident emailed the landlord and leaseholder to say that the bin store did not have a lock. She stated the residents had previously been locked out of the bin store for a week. Within the same email, the resident stated:

“[the leaseholder] sent an engineer to fix the smoke vents on the first floor on 19 March [2021]. They were not broken to start with. This engineer has left the smoke vents open. They are meant to remain closed and only open automatically to release smoke from the building in the event of a fire. This contractor also told a resident the smoke vents could be used for regular ventilation, which is not true, and contradicts everything we have been told (…).”

The fire

On 15 April 2021 at around 9 pm, there was a fire in the bin store located in the basement of the building. The fire service’s report (dated 19 April 2021) notes that:
1. The fire service had been called at 9:16pm on 15 April 2021.
2. They arrived at the scene at 9:18pm and the matter was resolved by 9:26pm.
3. The incident report was closed at 10:05pm.
4. The incident was recorded as a “small refuse/rubbish container” fire. The report lists the fire as accidental.
The resident’s account of the incident was that:
1. The smoke from the fire travelled up the bin chute and overwhelmed the first-floor corridor.
2. The smoke was able to escape through two fire doors down to the resident’s corridor at the back of the building.
3. The smoke vents ought to have activated causing the windows and vents to open for the smoke to dissipate. On the night of the fire, this failed.
4. The fire service attended and extinguished the fire.
5. Another resident in the block contacted the leaseholder to report the fire.
Following the fire, the landlord and the leaseholder sent staff to inspect the property. The resident raised concerns about the level of checking. The Ombudsman has not seen evidence of the outcome of this inspection. There is no evidence of subsequent inspections by the landlord or the leaseholder.
The resident raised concerns about the incident with the landlord right away on 16 April 2021. She asked several questions about why the ventilation system had failed. The landlord wrote to the leaseholder on 29 April 2021. Its communication can be summarised as follows:
1. It stated that the fire may not have occurred had the bin store been locked.
2. It asked for copies of the fire risk assessments and the fire report from the fire brigade.
3. It asked whether the automatic vents were in working order. It did not ask the leaseholder to produce surveys on the automatic ventilation system.
4. It requested the leaseholder notify it (the landlord) of any major incidents in the building.
The leaseholder responded on 13 May 2021, in which it explained:
1. The lock on the bin store was repaired on 2 March 2021 and on 13 April 2021. An operative attended on 16 April 2021 and recorded a video of the lock being fully operational. It was the leaseholder’s position that the lock had been operational.
2. Its out-of-hours team would keep stakeholders (including the landlord) updated on incidents at the block. The leaseholder was reviewing the procedure for major incident reporting in the interim.
3. There was no further fire report other than the one from 19 April 2021.
4. There was not enough smoke to activate the smoke vents. The sensitivity of the vents would be tested.
5. The fire risk assessment was provided to the landlord on 5 May 2021.
6. The freeholder had completed an ESW1 on the building which was supplied to the leaseholder on 17 May 2021. It would instruct a Chartered Fire Engineer to inspect the premises.
The landlord passed this information to the resident on 7 May 2021. The landlord specifically said:

“[the landlord was] very concerned about the witness accounts of smoke penetration and that smoke vents did not open we have requested a full explanation about their functionality. I know [the leaseholder has] taken notice of the residents’ concerns regarding the AOV’s not operating with the reported level of smoke in the common area and they have requested that the contractors check the sensitivity of the smoke detection so that we can have assurance that these operated within the correct parameters. I will let you know the outcome of this when [the leaseholder] shares this”

The Ombudsman has not been provided with evidence of the outcome of this inspection or the outcome of the inspection by the Chartered Fire Engineer.
The landlord contacted its Fire Safety Team on 10 May 2021 and explained that there were actions for the leaseholder outstanding from the January and March 2021 risk assessments. It asked whether the actions had been completed. The officer wrote to the leaseholder on the same day (10 May 2021) to ask if the actions from the previous fire risk assessments had been completed.
The resident raised a formal complaint on or around 16 May 2021. She was concerned that the vents did not activate, and that the landlord had not held the leaseholder to account, nor had it considered enforcing the repairs covenants against the leaseholder.
The landlord’s Head of Fire Safety stated (in internal emails in May 2021) that:
1. That department was not aware of enforcement clauses (in the lease).
2. The Fire Safety Order requires a level of cooperation between two interested parties which that team had attempted to undertake with the leaseholder.
3. If the leaseholder failed to repair the fire safety systems, the landlord would rely on the leaseholder to disclose this.
4. They could not comment on the allegation of the failing fire alarm and the certificates provided for the ventilation system showed failings on occasion, possibly due to vandalism to the actuators and the repairs reported.
The landlord responded to the complaint on 9 June 2021, in which it stated:
1. The fire brigade had determined the cause of the fire as ‘accidental’ at the time of the incident. There had been a post-inspection from the fire service and both the landlord and the leaseholder were co-operating with the fire service.
2. The lock on the bin store had been fully operational.
3. The leaseholder had accepted that the signage in the building was incorrect. The landlord apologised for the mistake and confirmed the correct signage was in place at that point.
4. The smoke was caused by smouldering in a 110-litre paladin in the bin store. The smoke vents did not activate because there was not enough smoke to engage them. The fire brigade upon its attendance opened the vents.
5. The leaseholder had asked its mechanical and engineering team to arrange a smoke simulation test to assess the sensitivity of the sensors on the automatic vents.
6. The leaseholder checked the ventilation system and emergency lighting quarterly, whilst the fire shutter/dampener was checked annually.
7. There were issues with the smoke ventilation system which had been highlighted on 6 November 2019, 1 October 2020, and 15 January 2021. There had been a failure of the leaseholder’s contractors.
8. The ventilation system at the rear of the building had been quoted for replacement.
9. There was an enforcement clause in the lease between the landlord and the leaseholder. However, at that time, there was no evidence the leaseholder had been in breach of the lease.
The evidence shows that in November 2021 the leaseholder wanted to upgrade the automatic vent system following advice from the fire service and the chartered inspector. Following concerns raised by the resident, the landlord asked the leaseholder why the ventilation system was being upgraded. In response, the leaseholder stated that the upgrade was to place additional smoke detectors in the bin chute lobbies.
The resident remained dissatisfied with the landlord’s answer and attempted to escalate the complaint. She informed the landlord it was her mother’s funeral so could not provide a full escalation response. The landlord asked the resident to escalate her complaint and provide full details by 16 March 2022.
The landlord closed the complaint on 17 March 2022 following no response and advised the resident. The landlord said the resident could escalate the complaint if she responded by 6 June 2022. The resident asked the landlord to escalate the complaint in April 2022. The landlord responded on 6 April 2022 and refused to escalate the complaint. It said that as the complaint related to the fire, which occurred a year earlier, it would not escalate the complaint. The landlord ultimately did not provide a final response. The Ombudsman accepted the complaint without one, on the basis that the landlord had been given a reasonable time to provide a final response and had not.

Assessment and findings

It is important to note that in cases like this one, the freeholder or the leaseholder would ultimately be responsible for the structure and exterior of the building, subject to the terms and conditions of their lease. The landlord’s role would be to ensure the safety of its residents by:
1. Regular inspections of the premises
2. Relying on and relaying information provided to it by its residents in the building
3. Where disrepair or a safety issue arose, it was required to consider its enforcement powers under the lease to compel the leaseholder to complete any outstanding works
This would be an approach that would be fair in all the circumstances, as the resident would likely have no recourse against the leaseholder or the freeholder (unless through nuisance) as she had no contract with them.
To deal with the complexities of these types of relationships, the Ombudsman made several recommendations in our Spotlight Report on Managing Agents (March 2022). Specifically, we said:

Recommendation 5

Landlords should review their operational response to service or repair requests in buildings owned and managed by third parties to ensure they are effective, including the provision of interim support and maintaining accurate and robust records.

Where these records are held or made on behalf of managing agents and/or freeholders, landlords should endeavour to ensure that they are provided either with copies of, or other clear information on, technical assessments, decisions and future plans.

Recommendation 9

Landlords should (…) be clear at what point they would consider legal enforcement of the contract or lease terms and ensure they openly and transparently communicate this to all relevant parties, in particular residents.

The Ombudsman’s enquiries

During our initial enquiries with the landlord, the landlord explained:

“In terms of the fire itself, there was service failure regarding the functionality of the AOV [automatic vent]. We recognise that delivery of repair services was provided by [the leaseholder] but aside from email assurances from their team, we did not have contractor reports to confirm that required repairs had been completed. As a responsible landlord, we should have taken appropriate actions to check and verify this due to the health and safety risks involved. Since this case was worked, we have introduced a dedicated team who are responsible for third-party providers and managing agents.”

The landlord said it wanted to:
1. offer the resident £1,200 compensation for the distress and inconvenience caused by the handling of the ventilation system
2. develop a policy to enforce against freeholders and managing agents and would like to involve the resident in this
The resident explained that she did not consider this would result in any meaningful resolution to the complaint. She was seeking £5,000 for every resident of the block (which would total around £250,000). The resident believes that only punitive compensation will cause the landlord to learn from outcomes. That may well be the case, but the role of this service is to decide if the landlord acted fairly in all the circumstances and if it did not how can it put the resident back into the position she would have been in, had the errors not occurred. It is the role of the Regulator of Social Housing, under section 226 of the Housing and Regeneration Act 2008, not the Ombudsman, to issue penalties for poor conduct.
The question for the Ombudsman at this stage is whether the landlord has made an offer of redress which, in the Ombudsman’s opinion resolves the complaint. In deciding this, the Ombudsman must consider two things:
1. The severity of the failures and
2. The impact on the resident.
On review of the evidence, the Ombudsman finds that:
1. The landlord did have a reasonable method in place for asking for fire risk assessments and there is evidence that the landlord regularly asked for this information from the leaseholder. That was appropriate.
2. It is likely there was a problem with the automatic vents and the alarm system on the day of the fire. The evidence is that further work was recommended.
3. The Fire Safety Team were not aware of the powers open to the landlord to enforce under the terms of the lease – that was not appropriate
4. The landlord does not have in place a reasonable method of assessing the leaseholder’s compliance in completing works. Importantly, it accepts it should have.
5. There has been a delay between the date of the fire and the landlord’s interactions with the Ombudsman to accept and understand the errors and offer redress.
The failures were severe. Fire safety is non-negotiable. The outcomes are all too obvious and history should not repeat itself. The Ombudsman must stress this.
Notwithstanding these errors, the landlord has accepted it did not hold the leaseholder to account as it should have done. It has put forward a way to resolve this, which in the Ombudsman’s view would be satisfactory. However, the landlord has not been able to demonstrate that it obtained evidence from the leaseholder to show:
1. The outcomes of the inspections of the vents following the fire and what works were required
2. That those works were completed
3. The outcomes from the chartered inspector
4. That the works proposed in November 2021 were completed
5. That the vents are in proper working order
This indicates that lessons have not been learned. If they had, the landlord would likely have had this information to hand for the Ombudsman to show it is now satisfied the vents are in proper working order. Instead, it appears to have accepted the leaseholder’s explanations of the current position. This is not acceptable and a reason why this amounts to maladministration.
Had the landlord been able to show it had obtained all repair records and satisfied itself the work required had been completed, together with the redress offered, this matter would have been resolved satisfactorily.
In short, the landlord has failed to demonstrate it has learned from outcomes. That is not appropriate.

The landlord’s handling of the complaint

The resident asked to escalate the complaint within the deadline set by the landlord of 6 June 2022. Despite this, the landlord refused to escalate the complaint. That was unfair as the resident was given the expectation the complaint would be responded to at the final stage of the complaint procedure. This meant the resident was unclear on whether she could access the Ombudsman.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its handling of the fire in the communal bin store.
In accordance with paragraph 52 of the Scheme, there was service failure in the landlord’s handling of the complaint.

Orders

The landlord must, within 28 days of the date of this determination:
1. pay the resident £650 compensation, comprised as follows:
  1. £500 for the distress and inconvenience caused by the landlord’s handling of the fire in the communal bin store
  2. £150 compensation for the landlord’s handling of the complaint
2. obtain all repairs records from the leaseholder to satisfy itself of the work completed to the automatic vents from May 2021 onwards
3. provide evidence to the Ombudsman of compliance with these orders.
The landlord must, within 56 days of the date of this determination:
1. put forward draft proposals for a policy for enforcing repair and safety covenants with its freeholders, landlords and managing agents. A copy should be provided to its residents in the block for comment and this service.
2. provide evidence of the team that has been set up to deal with enforcement of landlord/freeholder and managing agent covenants.
3. completing a full learning lesson review from this incident. In doing so, the landlord must:
  1. review the repair records to the vents or obtain an inspection of the vents itself.
  2. decide on whether it is satisfied that the vents are now in working order.
  3. provide a full report to the resident and this service setting out all learning together with the current position of the vents on the first floor and bin store.
4. provide evidence of compliance with these orders.

Recommendations

The landlord should use all reasonable endeavours to:
1. have the enforcement policy signed off before 31 May 2024
2. have a memorandum of understanding with Clarion about sharing repairs records and data about the block.

Contract outline