One Housing Group Limited (202105381)

REPORT

COMPLAINT 202105381

One Housing Group Limited

22 March 2022

Our approach

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

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

The complaint

This complaint is about the landlord’s handling of:
1. the resident’s request for an EWS1 form;
2. the related complaint.

Background and summary of events

Background

The resident is a leaseholder with a lease dated 24 March 2017 and holds a 70% shared ownership of the property. The landlord’s records show that the property is a two-bedroom flat on the third floor of an 11-storey building.
The lease agreement obliges the landlord to maintain, repair, redecorate, renew and improve structural parts of the building, including external walls. It also requires the resident to pay ‘specified rent’ and includes provision for the resident to staircase her ownership of the property.
The government issued ‘Advice Note 14’ in December 2018 as part of its Building Safety Programme. The advice was for owners of high-rise leaseholder buildings where the external wall system of the building did not incorporate Aluminium Composite Material (ACM) and set out checks which owners could carry out to satisfy themselves, and their leaseholders, that their building was safe.
In December 2019, the Royal Institution of Chartered Surveyors (RICS), the Building Societies Association (BSA) and UK Finance agreed a new industry-wide valuation process to help people buy and sell homes and re-mortgage in buildings above 18 metres (six storeys). Form EWS1 was introduced to prove to lenders that external cladding had been assessed by an expert.
The government consolidated ‘Advice Note 14’ when it issued ‘Building Safety Advice for Building Owners’ (BSA) in January 2020. Paragraph 1.4 of this guidance stated that ‘for the avoidance of doubt, building owners should follow the steps in this advice as soon as possible to ensure the safety of residents and not await further advice or information to act’ and paragraph 1.5 stated that ‘the need to assess and manage the risk of external fire spread applies to buildings of any height’.
In response to the guidance, some lenders took the view that, if certification could not be provided to demonstrate compliance with the government’s guidance on fire safety, they would be unwilling to offer a mortgage on properties within these buildings as they would have a zero valuation.
The landlord’s website has a section about cladding that shows that it has a programme to test external wall systems across its housing stock and that it prioritises inspections and remedial works based on building height and external wall coverings.
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) respectively.

Summary of Events

The landlord received a surveyor’s ‘advice note 14 report’ for the resident’s block dated 17 January 2020. This found that not all areas of the rendered external walls and ‘rainscreen cladding’ were of limited combustibility and recommended replacement of the latter.
A RICS surveyor completed an EWS1 assessment of the block on 25 February 2020 that concluded that ‘an adequate standard of safety is not achieved’ and that ‘remedial and interim measures required’ had been passed to the landlord.
The landlord wrote to the resident on 9 April 2020 to provide a cladding update – it advised that:
1. the building was 25.65 metres tall and the cladding materials were listed
2. a recent report had established ‘a few non-conformances regarding the workmanship and certification with respect to the external cladding’
3. an earlier fire risk assessment in May 2019 had found the building to be moderate risk
4. the ‘result is satisfactory and there were no high-risk actions identified, and all remedial actions have been included within a programme of works’
5. it would look to apply for funding through a government scheme that was shortly to be opened.
The Ministry of Housing, Communities and Local Government (MHCLG) released a building safety fund prospectus in May 2020 – this showed that the claims process for social housing providers (who would usually pass costs onto shared owners) would be set out in July 2020.
The landlord issued a building safety fund update to the resident on 20 July 2020. This explained that the claims process would open that month so it had been gathering evidence that would enable it to apply whilst also exploring alternative options to fund remediation works and pursue contractors.
The landlord wrote to the resident on 25 August 2020, confirming that it had made an application to the government’s building safety fund for her block.
The landlord wrote to the resident on 15 September 2020 – it apologised for a delay in responding and provided links to guidance on how she could purchase a greater share of her property.
The landlord created a cladding management plan in October 2020 that outlined ‘a prioritised approach based on a risk scoring system taking into account factors such as height, occupancy groups, external wall make up and the presence of mitigating equipment’ to identify and remediate buildings.
The landlord wrote to the resident on 14 October 2020 – it said that this was in response to contact from her advising of her intention to sell the property. It provided information about the sales process, including an EWS1 update that confirmed the risk priority approach it was taking and advice that there was not yet an EWS1 form for her block so potential sales could be halted.
The resident wrote to the landlord on 23 October 2020, passing on a request for information from it to assist her with a re-mortgage application. The landlord noted on the same day that the resident had reported that she had been chasing a call back from its ‘home purchase team’ and was enquiring about a friend purchasing the remaining 30% interest in the property.
The landlord’s records show that it noted on 27 October 2020 that it had spoken to the resident, confirmed receipt of re-mortgaging documents the day before and doubted that it would be possible for the resident’s friend to purchase a 30% interest.
The landlord recorded a telephone call from the resident on 9 March 2021 where she raised concerns that there had been no response to her enquiries about the EWS1 form. It noted that she said she was unable to staircase because her mortgage lender needed an EWS1 form so she wanted some advice from the landlord and a timescale for provision of the EWS1.
The landlord wrote to the resident on 9 March 2021 – it provided a copy of the EWS1 assessment form dated 25 February 2020.
The landlord wrote to the resident on 11-12 March 2021 – it said that this was following telephone conversations with her and advised that:
1. it had applied through the government’s building safety fund and was considering other options such as warranties but did not have a timescale as to when a compliant EWS1 could be provided
2. there was no restriction in the lease to her taking in a lodger and it provided a form for her to seek permission for this option
3. it had offered information about sub-letting options but the resident had said she was not interested in these
4. it would log a complaint about her dissatisfaction that it could not provide a timescale for the EWS1 form or a solution in the meantime to the financial impact on her (such as suspending part of her rent payments).
The landlord issued a complaint response to the resident on 30 March 2021. It concluded that:
1. it could not offer a likely timescale for the EWS1 form being issued and understood the impact this may have on residents
2. since January 2020, ‘strides were made to understand our buildings better, ascertain the materials on our buildings… and to also conduct an intrusive survey’
3. it had prioritised the building surveys ‘based on the height of the building, cladding type used and the level of the fire risk’
4. it had made the building safety fund application and would update residents when a decision was received
5. it apologised for the situation the resident was in and signposted her for further advice on sub-letting if this was an option she was interested in
6. the resident was required to pay rent in accordance with the terms of her lease.
The resident expressed continued dissatisfaction to the landlord on 1 April 2021 on the grounds that its complaint response had repeated already known information and did not demonstrate that her complaint had been investigated.
The resident approached this Service from May 2021 to advise she was dissatisfied with the landlord’s response as she felt it had not recognised the impact of her not being able to staircase in terms of ongoing rent she was having to pay and not being able to move to a larger property to house her and her family members (she also provided evidence to show that she paid a £999 mortgage switcher fee on 10 November 2020).
The landlord’s records show that it organised meetings with residents every eight weeks from at least as early as June 2021. It wrote to residents to advise that these were designed to ‘provide updates on anything from EWS1 checks and funding applications to new safety measures and the progress of works’.
The landlord conducted a resident meeting on 2 August 2021 where it noted that it told residents that it believed its building safety fund application would be agreed which would cover all remediation work (that it expected to complete by August 2022 when a fire engineer would sign off a compliant EWS1). It added during this meeting that some lenders may process re-mortgages if the landlord was able to confirm the remediation timeline and individuals would need to check with their lenders on this.
The landlord advised this Service in August 2021 that it had made an error in the handling of the resident’s complaint by only completing one stage of its complaints process. It made an offer to consider the matter at stage two but, after discussing the matter with the resident in September 2021, this Service advised the landlord that the Ombudsman investigation had already begun.
MHCLG wrote to the landlord on 26 August 2021 to advise that its building safety fund application had been successful as ‘approval has been granted for funding equivalent to the value of remediation work which would otherwise be charged to leaseholders’.
The resident advised this Service in February 2022 that she still did not have a likely timescale from the landlord as to when she would be able to obtain the EWS1 form.

Assessment and findings

EWS1

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?
During the period covered by this complaint, the government’s ‘Advice Note 14’ applied to the building as this recommended that building checks were conducted to all properties. This meant that the landlord was expected to carry out checks to ensure that the cladding system was safe and to carry out any necessary remedial works.
It is clear from the landlord’s records and copies of letters that it sent to shared owners in the resident’s building, including the resident, that it was taking steps to work towards compliance with the government’s guidance. Surveys of the block were completed during January-February 2020, the resident was updated accordingly in April 2020 and the landlord confirmed in August 2020 that it had made a claim through the recently opened government building safety fund (through which it would be able to complete works to the resident’s block). These actions demonstrated that the landlord took a rational approach to arrange inspections, prioritised the resident’s block appropriately given its height, was pro-active in securing funding to make the building safe and updated the resident accordingly.
The evidence seen by this Service indicates that the landlord became aware of the resident’s intention to either sell or staircase her property during the second half of 2020. Between September-October 2020, it gave guidance to the resident on the sales process but also set out the EWS1 position, confirming that it had taken a risk prioritisation approach to the issue and that the lack of an EWS1 form could prevent a successful transaction. It was reasonable that the landlord signposted the resident to its sales and staircasing procedures while warning her of the potential obstacle that would be caused by the lack of an EWS1 form.
The resident has since indicated that the landlord should reimburse her for costs she has incurred such as the re-mortgaging fee in November 2020. However, the landlord had already advised the resident about its plan to make the block safe as early as April 2020 and warned her in mid-October 2020 that sales transactions could be halted by the lack of an EWS1 form. This demonstrates that when it became aware of the resident’s intention to sell or staircase, the landlord attempted to give accurate advice to her about the likelihood of a successful re-mortgage application and was not responsible for the fees she incurred.
There is no evidence of further enquiries from the resident or information provided by the landlord until March 2021 when the resident said the lack of an EWS1 form had prevented her staircasing and she asked for a likely timescale for the EWS1. Over the following month, the landlord took the following steps:
1. provided a copy of the EWS1 assessment from February 2020 (that showed remedial works were needed)
2. spoke to the resident and followed up in writing
3. explained that it did not have a timescale for the EWS1 form because it was waiting on the government building safety fund decision and apologised for the position the resident was in
4. signposted her to alternatives such as taking in a lodger and sub-letting.

These actions were all reasonable steps on the part of the landlord to maintain communications with the resident, explain the approach it had taken to ensure the block would comply with building safety standards and discuss potential alternatives with her in the meantime.

Since the complaint exhausted the landlord’s complaints process in March 2021, it has taken the following actions:
1. organised remote drop-in meetings for residents from June 2021
2. secured a positive decision on the government building safety fund application in August 2021
3. made residents aware that it expected to be able to obtain a compliant EWS1 assessment in August 2022.

This demonstrates that the landlord has continued to progress the remediation works, giving updates and providing means for residents to raise concerns. The resident has recently indicated to this Service that she is still unaware of when an EWS1 form will be available – a recommendation has been made below in this regard.

In summary, the landlord offered appropriate updates and advice to the resident between April 2020 and March 2021 on its progress to secure funding so it could complete remediation works to the block that would allow a compliant EWS1 form to be produced. It offered reasonable guidance to her on the difficulties she was likely to face in selling the property without an EWS1 form and potential alternatives such as sub-letting.

Complaint handling

The landlord logged an initial complaint from the resident on 12 March 2021. It noted that this was on the grounds that the resident was dissatisfied with the lack of a timescale for an EWS1 form and the lack of assistance towards her rent in the meantime.
The landlord’s complaint response of 30 March 2021 set out the context to the EWS1 issue, reiterated the approach it had taken to work towards EWS1 compliance and concluded that it could not uphold the resident’s complaint or waive her rent liability. This decision was in accordance with the resident’s lease agreement that obliged her to pay rent on the proportion of the property that she did not own. However, it incorrectly signposted the resident to this Service if she remained dissatisfied rather than giving her the option of escalating the complaint to the final stage of its complaints process.
The resident expressed continued dissatisfaction to the landlord on 1 April 2021 on the grounds that she felt its initial investigation was insufficient. The landlord should have reviewed the resident’s complaint at this point and responded to it at the final stage of its complaints process – its failure to do so was inappropriate and meant that the resident’s complaint was not dealt with in accordance with its complaints policy.
The landlord has since acknowledged this fault to this Service, explaining that it made an error because it previously had a single stage complaints process that had been amended a few months prior to the resident’s complaint. The landlord offered to investigate the resident’s complaint at the final stage of its complaints process but the resident understandably did not wish to pursue this option and the Ombudsman’s investigation had already commenced by this point. This meant that the resident lost the opportunity for her complaint to be reviewed by the landlord at a more senior level albeit it is unlikely that this would have led to a different outcome on the substantive EWS1-related issues.
In summary, the landlord’s handling of the resident’s initial complaint was appropriate and its decision not to uphold the complaint was reasonable. However, it incorrectly signposted her to this Service in the initial complaint response and failed to rectify this error when the resident expressed her continued dissatisfaction, meaning that it did not review the complaint in accordance with its complaints policy.

Determination

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of the resident’s request for an EWS1 form.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its handling of the related complaint.

Reasons

The landlord gave the resident accurate and reasonable advice about its prioritisation of her block for remediation works, progress to secure funding for these works and the potential impact of not being able to provide an EWS1 form in the meantime.
The landlord failed to consider and respond to the resident’s continued dissatisfaction at the final stage of its complaints process in accordance with its complaints policy.

Orders

The landlord to write to the resident to apologise for the service failure identified in this report.
The landlord to pay the resident compensation of £100 for the inconvenience caused to her by the maladministration in its handling of her complaint.

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

Recommendations

The landlord to write to the resident to:
1. update her on progress to complete remedial works at the property
2. confirm if it is still likely to be able to obtain a compliant EWS1 form by August 2022
3. confirm if it is still willing to share information with lenders about its remediation programme and if, using this method, property sales in her block have been successful over recent months.

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