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Metropolitan Thames Valley Housing (MTV) (202415285)

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REPORT

COMPLAINT 202415285

Metropolitan Thames Valley Housing (MTV)

25 February 2025


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 length of time taken by the landlord to carry out an intrusive survey and provide an EWS1 (external wall system) form.
  2. The Service has also considered the landlord’s handling of the resident’s complaint.

Background

  1. The resident is a shared owner of the landlord which is a housing association. The property is a 2 bedroom flat on the first floor of a 4 storey block of flats. The landlord is the freeholder for the building. The resident has owned the property since July 2016.
  2. The resident contacted the landlord about selling her property in January 2021. She completed an “instruction to sell” form on 4 February 2021. The landlord granted her permission to pursue an open market sale on 9 March 2021.
  3. The resident wrote to the landlord on 12 February 2021 to ask if her building had cladding. She asked if she could have either the EWS1 (external wall system) form or the fire risk assessment (FRA) for the building. In its reply the landlord said that there was no EWS1 for the building. It explained that it was following a risk based programme, with its focus on buildings above 18 metres. As her building was below 18 metres it was currently outside the original scope for carrying out these inspections. It provided her with a copy of the FRA for the building.
  4. On 9 March 2021 the original developer confirmed that the building had terracotta rainscreen cladding.
  5. On 25 August 2021 the landlord wrote to the resident to inform her of a change in the guidance from the Royal Institute of Chartered Surveyors (RICS). This had been issued on 8 March 2021 and was effective from 5 April 2021. The guidance said that buildings of 4 storeys should only require EWS1 where there was aluminum composite material (ACM), metal composite material (MCM) or high pressure laminate (HPL). The landlord’s position was, based on this guidance, that mortgage providers should not need an EWS1 for the resident’s building. The landlord sent a building wide letter on 10 December 2021 to tell residents of this change to the RICS guidance.
  6. In response to an enquiry from the resident, the landlord wrote to her on 11 March 2022. It said that it could not tell her when it would be carrying out an EWS1 inspection of her building. It said it was working on an annual programme, and it had not included her building for the coming financial year. It said that an EWS1 may not be necessary for her building based on the current RICS guidance. This was however a matter for individual mortgage providers. It further directed her to it sales team who it said may be able to help her with subletting her property if she needed to move.
  7. The landlord carried out a visual and height check survey of the building on 18 April 2022. This recorded the building as 10.8 metres or 4 storeys. This recommended that the landlord should carry out a low-level intrusive survey.
  8. The resident contacted the landlord at the end of February 2023. She asked when it would carry out the EWS1 for her block. The landlord replied on 6 March 2023 restating its position that it was taking a risk-based approach to its intrusive survey programme. It was unable to tell her at that stage if it would include her building in the programme for the next financial year. It said it would know more at the end of the month.
  9. The landlord wrote to the resident on 21 March 2023. This provided advice on the introduction of the Building Safety Act 2022. The Act included protections for leaseholders against the cost off works to deal with building safety defects. The letter said that with the introduction of the act, it would not be passing on costs for buildings safety remediation works to its leaseholders. This applied where buildings were above 11 metres or 5 storeys.
  10. The landlord completed a new FRA for the building on 29 November 2023. This recorded the risk level for the building as tolerable. It recorded that there was unidentified cladding covering approximately 25% of the building. It said that the landlord’s building safety team should investigate the cladding. The FRA described the building as “4 floors with an approximate height of 12.8 metres”.
  11. The resident raised a formal complaint on 21 March 2024. She said that she had been trying to sell her home and had received multiple offers. These had all fallen through due to the lack of an EWS1 for her building. Despite contact with the building safety team, it had not provided her with an answer as to when the intrusive survey would be done. She said that the FRA for the building had inaccurately said that there was no cladding. She wanted the landlord to tell her when the intrusive survey would be done and felt that its earlier responses had been inadequate.
  12. The landlord provided its stage 1 response on 10 April 2024. It upheld her complaint. It offered an apology for its delayed response and for the inconvenience caused to her. It said that it had spoken with its building safety team and acknowledged the perceived lack of proactiveness, transparency and support. It said:
    1. It understood the impact of the situation on all its leaseholders, particularly on sales and remortgaging.
    2. It was “committed to working towards a resolution that supports your needs and concerns”.
    3. It was taking a risk based approach. This used the information it held about its buildings to allow it to arrange a programme of inspections. As her building was under 5 storeys it was yet to be inspected as it was focused on those buildings that posed a higher risk.
    4. It was unlikely her building would be inspected in the coming year. It could not provide a timescale of when it would be inspected.
    5. To support her it could provide a letter of assurance on cost recovery as well as a landlord certificate. This had been successful for other residents in a similar position. It asked her to email it, should she wish it to provide written assurance.
    6. It offered her £75 compensation for the inconvenience and anxiety caused.
  13. On 16 April 2024 the resident asked the landlord to escalate her complaint. She said that the compensation did not cover the losses she had incurred in valuations and legal fees. Further, it had refused to provide her with a letter of assurance, or a landlord certificate as offered in its stage 1 letter. It had told her that her building did not qualify as it was below 11 metres. She said that the FRA said that the building was 12 metres. She had also previously received a letter that said that the Building Safety Act covered her.
  14. The resident wrote to the landlord on 1 May 2024 asking if it could provide a statement for her buyer’s mortgage provider. The landlord wrote a letter on 2 May 2024. It confirmed the findings of the FRA and explained its programme for intrusive surveys. It said that, in line with government guidance, as the resident’s block was below “18 metres and not exhibiting any specific cause for concern, it falls outside the initial scope of requiring an EW1 form”. It set out the changes to RICS guidance. It said that a visual survey carried out on its behalf in April 2022 had not found ACM, MCM or HPL present on the building. It said that the developer of the building had said that the cladding used was terracotta rainscreen. It said that it was its position that mortgage providers should not require an EWS1 for the building. It concluded that it was unable to provide assurance that the information provided was fully accurate, confirming the need for intrusive investigations. It later said that it could not share the visual survey with the resident.
  15. The landlord wrote to the resident on 15 May and 17 June 2024 extending the target for its reply to her stage 2 complaint. It provided its response in a letter dated 11 July 2024. This was emailed to the resident on 30 July 2024. The landlord upheld her complaint. It had been in contact with its building safety and resales teams. It said that it was satisfied with the way her complaint had been handled at stage 1 and had found no evidence of poor complaint handling or service failure. It said:
    1. A visual inspection by specialist surveyors had been done on 15 March 2022. This found that the building was made up of a timber framed structure with brick, terracotta rainscreen cladding, and a render system façade. An intrusive survey would be the next step to determine the exact building make up and to see if any building safety works would be required.
    2. Having taken a risk based approach, its focus was currently on those buildings between 11 and 18 metres, or above 5 floors. The resident’s block was 4 storeys.
    3. The FRA completed on 29 November 2023 identified unknown materials on the upper floors and recommended a further inspection.
    4. It expected that an intrusive survey would take place in the next financial year. Any identified works were then estimated to start in October 2026 and complete in October 2028.
    5. It said that it had a specialist team in place to help leaseholders with sales and alternative documentation to the EWS1 form. It included a link in the letter to its online contact form for that team.
    6. Its sales team had confirmed that the resident had first approached it to sell her property in January 2021. She reapproached it in January 2023 and she was given open market approval on 28 February 2023. This waived the landlord’s rights to nominate a purchaser to the property.
    7. The letter included a copy of an email sent to the resident in January 2023. This explained about the EWS1 form and the risk in going ahead with a sale. It said that it could not reimburse her for any costs she incurred should a sale not progress.
    8. In line with the advice given in its stage 1 letter, it said that it could provide her with a letter of assurance and landlord certificate. It asked her to contact its safer buildings team to request this.
    9. It offered compensation of £200. This was £125 for her time and trouble, increased from £75 offered at stage 1, and £75 for its poor complaint handling. This was for the delay in responding at stage 2.

Events after the end of the landlord’s complaints process

  1. The resident contacted this Service on 18 July 2024 as she had not received a response to her stage 2 complaint. She shared a copy of the email she had received from her landlord dated 17 June 2024 telling her it would respond within the next 10 working days. She said that she had waited for over 5 years for the building to be included within the landlord’s safer building programme and she was still waiting for its response to her request. She wished to move as her family of 4 were overcrowded in their current home. In conversation with us the resident said that in November 2024, she had been told by the landlord that the block would be included in the programme for the next financial year. She was again trying to sell her home.
  2. Following contact from this Service the landlord reconsidered the complaint. It has told the Service that it would like to offer further compensation of £235. It said that it had informed the resident of this offer. This was broken down as follows:
    1. £150 for distress and inconvenience caused by the delays in responding to her emails.
    2. £60 for her time and trouble, for the inconvenience caused to her.
    3. £25 for its poor complaint handling in not writing to the resident to tell her that it would be extending its response time at stage1.

Assessment and findings

Time taken to carry out an intrusive survey and provide an EWS1 form

  1. 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 that had an external wall system (EWS) that 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.
  2. 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. This was 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 mortgage providers that an expert had assessed external cladding. There had been significant delays in arranging surveys due to the increase in demand for these to be done.
  3. The government issued further advice in January 2020. This said that “the need to assess and manage the risk of external fire spread applies to buildings of any height”. In response, some mortgage providers took the view that, if certification could not be provided to show compliance, they would be unwilling to offer a mortgage on these properties. In March 2021, RICS put forward new guidance which looked to clarify when an EWS1 form was required. This proposed that mortgage providers primarily only seek assurance for buildings over 18 metres tall, or with more than 25% of the external wall covered in cladding.
  4. The Ombudsman issued a guidance note on fire safety and cladding, which was followed by a spotlight report on the subject in May 2021. This recognised that many landlords were using a risk based approach in carrying out inspections. It also highlighted the distress that was being caused to residents when trying to sell their properties. This was particularly felt in buildings considered lower risk. The Ombudsman’s guidance further advised that, when investigating a complaint relating to fire safety and cladding, the Ombudsman would 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 about the situation and was this communication appropriate?
    3. how has it responded to the individual circumstances of the resident?
  5. The landlord provided information to the resident about its sales process. This set out that some mortgage providers were asking for an EWS1 form, in some cases where these were outside the criteria. The landlord further explained that it would take considerable time for it to complete these inspections. It said that it would not refund any legal or valuation costs. It was appropriate that this advice was given to the resident when she approached it about selling her home.
  6. The resident obtained information about the type of cladding on her building from the developer in March 2021. This was followed by communication from the landlord in August 2021 about new guidance from RICS. Based on this guidance the landlord wrote that it did not believe that the resident’s building required an EWS1 form. The landlord sent a blockwide letter informing residents of this in December 2021. Later correspondence about the EWS1 form between the landlord and the resident was driven by the resident’s own enquiries. This was often in response to queries made by the mortgage providers for prospective buyers of her flat. The landlord maintained its advice that its inspection programme was risk based but that given the height of the resident’s building it did not believe that an EWS1 was needed.
  7. An inspection of the block was completed on behalf of the landlord in April 2022. This recommended that a further intrusive survey should be carried out. There is no evidence that the landlord communicated these findings with the resident or other occupants of her building. It would have been appropriate for it to have done so as this presented a different position to that stated in its correspondence in August and December 2021. That it did not do so was a failure.
  8. The landlord has consistently told the resident that it was taking a risk-based approach to conducting intrusive surveys to produce the EWS1 form. This considered the height of the building, alongside the building’s occupation and use. It did not however set out a time frame for when the resident could expect to see the survey carried out on her building. The landlord said that it was only working on a yearly programme.
  9. This approach taken by the landlord was not unreasonable. It did not however provide the resident with a timeframe within which she could expect her block to be inspected. It would have been more appropriate for the landlord to have developed a roadmap as to when it would undertake surveys across its homes. Its focus on a yearly programme did not recognise the impact of this uncertainty on residents, particularly for those in lower rise buildings. The resident has said that her family are overcrowded in their current home, and that she needed to sell her property to enable them to move. The lack of clarity around when her building will be inspected to produce the EWS1 form has affected the resident and led to failed attempts to sell her home.
  10. The landlord’s communication has also provided some discrepancies. The landlord wrote to the resident in March 2023 proving information about the provisions within the Building Safety Act 2022. It said that it would not be passing on the costs of building safety works to its leaseholders. It said that this applied to buildings above 11 metres. The FRA shared with the resident in November 2023 said that the building was approximately 12 metres in height. However, the visual survey completed in April 2022 recorded the building as being 10.8 metres. The landlord should clarify to the resident how the height of her building has been calculated and ensure that its records are consistent in this measurement. The combination of the FRA and the landlord’s letter about the provisions of the building safety act indicate that the residents building should be covered by this provision.
  11. Within its stage 1 complaint response the landlord said that it could provide the resident with a letter of assurance to support her in her attempts to sell her home. It asked her to email it if she would like it to provide such a letter. It is unclear why a letter was not provided with its response to her complaint. This was a missed opportunity by the landlord to conclude the resident’s complaint at the earliest stage.
  12. In escalating her complaint with the landlord, the resident said that she had requested the letter as guided by its stage 1, but the landlord had refused to provide the same. This aspect of her complaint was not responded to by the landlord and is considered in more detail below.
  13. In investigating a complaint, we consider 3 principles of dispute resolution: be fair, put things right and learn from outcomes. These are high level, good practice guidelines developed by the Ombudsman. The landlord’s advice that she should contact it to request a letter that could help her with her sale was inappropriate in the circumstances. This was a failure by the landlord to put things right for the resident. It would have been more appropriate for it to provide the offered letter without further prompt. That it did not do so was a significant failure in its response to the resident.  
  14. The landlord did not proactively communicate with the resident about progress in gaining an EWS1 form. Its stage 2 response said that it expected the building to be included in its programme for the next financial year. There is no evidence that it followed this up with more detailed information of its timescales. It should now provide this written assurance to the resident. Further it should provide clarity to the resident about the height of her building, the construction and confirm that the building is clad with terracotta rainscreen material, rather than ACM, MCM or HPL. If the building is under 12 metres, it would be appropriate for the landlord to seek a revision of its FRA to reflect the correct height detail.
  15. Overall, there was a maladministration in the landlord’s handling of this issue. It did not provide the resident with a clear timescale for carrying out the intrusive survey. It did not communicate with the resident proactively and at times its correspondence presented conflicting information. There were missed opportunities to resolve the resident’s complaint at an earlier stage. An order has been made for the landlord to provide written clarity to the resident on the basis outlined above.

Complaint handling

  1. The landlord has provided a copy of its complaints policy. This was effective from April 2024. It sets out a 2 stage process for handling complaints. The policy does not include specific timescales for it to reply to a complaint. It says that it will respond in the timescales set out within the relevant ombudsman’s code of practice. It says that if it cannot meet these timescales, it will notify the resident and agree a later date for its reply. The Service’s Complaint Handling Code (the Code) requires a landlord to acknowledge a complaint within 5 working days. It must then respond to the resident within 10 working days at stage 1. At stage 2, the landlord must provide its final response within 20 working days of acknowledging a complaint.
  2. The resident first raised a formal complaint with the landlord on 21 March 2024. The landlord acknowledged the resident’s complaint on 26 March 2024. It provided its full response on 10 April 2024, 1 day over the 10 day target.
  3. As she was unhappy with the landlord’s response the resident asked for her complaint to be escalated on 16 April 2024 and the landlord acknowledged this the same day. On 15 May 2024 it wrote to her to say that it needed further time to investigate her complaint and said it would reply by 12 June 2024. On 17 June 2024 it sent a further letter to the resident extending its deadline by a further 10 working days. The resident chased a reply to her complaint on 4 July 2024. There is no evidence that this correspondence from the resident was responded to. The landlord had provided a copy of its stage 2 complaint letter dated 11 July 2024. Its complaint correspondence record shows that this was emailed to the resident on 30 July 2024 with a cover note that it had completed its investigations.
  4. Despite writing to the resident to let her know about a delay to its investigation, there is no evidence that this extension was agreed with the resident. It then did not meet its revised target with a further significant delay to its response. It is unclear from the evidence provided if the complaint letter was first mailed to the resident on 11 July 2024 before being emailed to her on 30 July 2024, or if the later date was the first time that the complaint response was provided to her. There were significant delays in the landlord’s response to the resident’s escalated complaint. This was a failure in its complaint handling.
  5. Further it is noted that within its stage 1 response it told the resident that it could provide her with written support and a landlord certificate that may help her in progressing her sale and told her to contact its safer building team to obtain this. Within her stage 2 complaint she said that this had not been provided and she has been refused this due to the size of her building. In its reply this was not addressed by the landlord, and it simply restated this offer. This was a failure that amounts to maladministration as it would have caused significant frustration to the resident.
  6. The landlord’s compensation policy sets out its approach to compensating its residents when things go wrong. This includes a table to help it to calculate the level of compensation it will consider in a range of circumstances. This includes a failure of service, time and trouble and poor complaint handling. It sets out the level of failure as low, medium, or high against whether it should issue an apology or compensation taken from a financial starting point of £51.
  7. In its offer of compensation at stage 1, the landlord has set out that it was for the inconvenience and anxiety experienced by the resident. This element was increased at stage 2 and a further amount was offered to reflect the delays that had occurred in responding to her complaint. The landlord offered a total of £200.
  8. Since the complaint was escalated to the Ombudsman, the landlord has reconsidered this compensation, offering an additional £235. This latest offer considers both the time and trouble to the resident and its poor complaint handling, together with the distress and inconvenience caused to the resident by a noted failure in responding to her emails. We are pleased that the landlord has reflected on its original offer. It would however have been appropriate for it to have done so within its own complaints procedure and not required referral to this Service.
  9. The Ombudsman has considered the total offer of compensation of £435 in the context of the failures identified. It is felt that this does not capture the landlord’s failure to provide a letter of assurance to the resident or respond to this element of her complaint in its stage 2 reply. An additional amount of £150 has been added to the total compensation ordered. We have concluded that there has been maladministration in the landlord’s complaint handling.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the length of time taken by the landlord to carry out an intrusive survey and provide an EWS1 form.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the resident’s complaint.

Orders

  1. Within 4 weeks of the date of this report the landlord must:
    1. Provide the resident with a written apology for the failings set out in this report. This should be written in line with this Service’s guidelines on remedies.
    2. Pay the resident a total of £585 in compensation. This is calculated as follows:
      1. £225 for the distress and inconvenience caused to the resident by delays in correspondence and the inaccuracies identified.
      2. £110 for the time and trouble to the resident in having to pursue the landlord for information and updates around the provision of an EWS1 form.
      3. £250 for the landlord’s poor handling of the resident’s complaint, both in the delays in its reply and a failure to address all the issues raised.
      4. This includes the original sum of £435 offered by the landlord. It may deduct any part of this that has already been paid to the resident from the final sum.
    3. The landlord should provide written assurance to the resident, confirming when it will be carrying out an intrusive survey of her building and when an EWS1 form is likely to be available.
    4. It should provide clarity to the resident about the height of her building, its construction and confirm the material used to clad the building. The detail of this should be shared with the Service as evidence of its compliance.
  2. Within 12 weeks of the date of this report the landlord must:
    1. Undertake a review of its compensation policy to ensure that adequate compensation is fully considered within its own internal processes. Residents should not be forced to escalate their complaint to this service to receive full consideration.

Recommendations

  1. It is recommended that the landlord proactively update the resident going forward, at least every three months, on its progress in obtaining an EWS1 form.
  2. It is recommended that the landlord consider carrying out a further FRA inspection to ensure that this accurately reflects the correct height of the residents building if it is found to be under 12 metres.