Peabody Trust (202011460)

A picture containing logo

Description automatically generated

REPORT

COMPLAINT 202011460

Peabody Trust

27 June 2023

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 response to the resident’s concerns and requests for information regarding fire safety in the building in which he owns a property.
The Ombudsman has also considered the landlord’s complaint handling and record keeping as part of the assessment.

Background and summary of events

Background

The resident is the leaseholder of the property (the property) subject of the complaint.
The property is a flat situated in a purpose built block (the building).
The complaint which was made to the landlord was submitted as a group complaint by the resident on behalf of several other leasehold owners (the leaseholders) who also live in the building. The complaint set out the matters complained of concerned all the leaseholders and impacted on them in the same way. In responding to the complaint the landlord treated the complaint made by the resident as a group complaint.
Paragraph 26 of the Housing Ombudsman Scheme sets out that “the Ombudsman may accept one complaint from more than one complainant or a group about the same member if the issues and facts are the same without carrying out multiple investigations”. The Ombudsman can therefore determine this complaint as a group complaint using the resident as a test case. The conclusions made may then be applied to the leaseholders.
Advice Note 14 was issued by the Government in December 2018 as part of its Building Safety Programme. In summary the advice was for owners of high-rise buildings where the external wall system of the building did not incorporate Aluminium Composite Material. The advice set out checks which owners could carry out to satisfy themselves that their building was safe. This guidance was consolidated in ‘Building Safety Advice for Building Owners’, issued in January 2020, which suggested that owners should consider the advice irrespective of the building height.

Summary of events

On 8 June 2020 the landlord wrote to the leaseholders following an investigation into the building’s external wall. In summary the landlord said:
1. It had undertaken an investigation into the external wall which had identified a “potential fire safety concern with one type of the external wall system on the building”. It noted that the investigation was in line with Government guidance following the Grenfell Tower fire.
2. The building had no Aluminium Composite panels (ACM) in its wall construction.
3. As an interim safety measure it had engaged a waking watch to patrol the building to alert residents to the presence of a fire. It confirmed that it had also revoked the stay put policy in the event of a fire to evacuation.
4. It was contacting residents who it knew to be vulnerable to ensure they had a clear evacuation plan.
5. It was surveying the alarm system to see how it could be improved.
The landlord concluded by confirming it would be in touch with a further update in due course.
On 7 July 2020 the resident wrote to the landlord regarding “fire safety issues” affecting the properties in the building. In summary the resident said:
1. The fire safety issues were due to the “use of unsafe non-ACM cladding” on the building.
2. It was unsatisfactory that the landlord’s letter dated 8 June 2020 did not provide the following information:
  1. Any fire safety reports or assessments on the building.
  2. Any indication of when remediation work would be started or completed.
  3. Any commitment confirming who would bear the cost for the remediation works or waking watch.
  4. Whether any other blocks on the estate posed a fire risk.
3. It was unclear if the building was safe to live in. He stated that the landlord’s response to requests for reassurance from leaseholders regarding fire safety had been unsatisfactory due to a lack of response and poor communication.
4. The landlord should consider upgrading the building’s fire alarm system instead of the waking watch.
5. It was unclear whether the landlord would be applying for funding from the Government to assist with the costs to remediate the building.
6. The landlord should:
  1. Confirm costs for the remediation works and the waking watch would not be passed on to leaseholders.
  1. Provide a timeline for the commencement and completion of remedial works.
  2. Provide copies of all fire safety reports for the building and other buildings on the estate.
The landlord responded on 20 July 2020. In summary the landlord said:
1. The building did “not have unsafe cladding”.
2. It was following Government advice to investigate and assess the fire risk in all tall buildings following the Grenfell Tower fire.
3. As part of its investigation it had identified “concerns” with the building in relation to the “type of materials used within the wall”. It explained that the issue was not caused by cladding “but rather the fire stopping properties within the wall itself”.
4. It was talking to the original developer of the building regarding remediation works.
5. Until remediation works were completed it had temporarily suspended the “stay put policy” in respect of a fire. It confirmed a waking watch was in place to support the evacuation policy where a fire was identified. It confirmed that the waking watch would be ended as soon as it had “installed a linked fire alarm”. It noted that it had obtained quotes for the fire alarm and would be writing to leaseholders shortly.
6. It had attached a copy of the Building Safety Record which included relevant information from the Fire Risk Assessment (FRA).
7. Information contained within the report (the report) following the external wall investigation “may be subject to legal privilege” so it was “not able to issue that currently”.
8. Once all the evidence had been reviewed it would begin setting out a timeline for the different elements of work that would be involved as part of the remediation.
9. It was investigating the fire safety of the other blocks within the estate.
10. Under the terms of the leases for the properties within the building leaseholders and shared owners would usually be expected to pay for work of this nature via the service charge. It confirmed that it was however its intention to “explore every avenue open to [it] to fund the cost of remediation before [it] recharged leaseholders”. It set out that this would include exploring insurances and warranties.
11. As there was a chance that leaseholders may have to make a contribution towards the remediation costs, it would be issuing consultation notices within the coming weeks. It explained that as the remediation works were deemed urgent it had also applied to the First Tier Tribunal Property Chamber (FTT) to seek dispensation from the full consultation process.
On 28 July 2020 the resident replied to the landlord. In summary the resident said:
1. The landlord’s response was delayed. He noted that the landlord had promised to reply within seven days of acknowledging his correspondence.
2. The landlord’s response was unsympathetic and failed to acknowledge that the building was unsafe.
3. The landlord’s response had been drafted in a way to “avoid responding to many of the points” raised. He confirmed that this included commitments on costs, a timeline for the remediation works, disclosure of all fire safety reports and whether the building was safe.
4. The Building Safety Record contained “no useful information”.
5. It was not accepted that the report was subject to legal privilege. He confirmed that the findings from the investigation should be shared “to prevent harm coming to residents”.
6. Leaseholders would not be contributing towards any remediation costs.
7. The waking watch was initiated without any consultation with residents.
The resident concluded by requesting that the landlord respond to his correspondence providing “specific numbered responses to the following points”:
1. The landlord would commit to either cover the cost of the remediation works or pursue them from the developer, Government or other third party.
2. The landlord would commit to cover the cost of the installation of a new fire alarm system.
3. The landlord would commit to cover the cost of the waking watch.
4. The landlord would involve leaseholders at every stage in preparing for the commencement of remediation works and provide updates on the works as soon as they were known.
5. The landlord would disclose all relevant fire safety reports.
6. The landlord would clarify that the purpose of the report was to protect residents.
7. The landlord would commit to not invoicing leaseholders for the creation and distribution of the Building Safety Record.
8. The landlord would disclose known or suspected fire risks in respect of other blocks on the estate.
9. The landlord would accept his letter dated 7 July 2020 as the commencement of the complaint procedure for the purpose of the Housing Ombudsman.
10. The landlord would provide the dates, time and access information for the “online resident briefing sessions” as noted in its letter dated 8 June 2020.
On 4 August 2020 the landlord responded to the resident. In summary it said:
1. It was sorry for the delay in providing its first response dated 20 July 2020, explaining this was due to the large number of enquiries it was receiving in relation to fire safety.
2. It had attached the most recent FRA and Building Safety Record for the building.
3. It currently did not have an External Wall System Form (EWS1) for the building. It confirmed that it would obtain one once all remediation work was completed.
4. It was looking at all available options to avoid recovering costs from leaseholders for the remediation works. It noted that the developer had indicated that it was willing to cooperate on costs however it could also explore insurance policies and the Government’s fund to cover the cost of the remediation works. It confirmed that it was however unable to “offer a blanket guarantee that no elements of the costs [would] be passed down to homeowners”.
5. It noted that leaseholders did not think that they were liable for any costs associated with the remediation works as they were caused by defects. It explained that in order for this to be true it would need to prove that the defects were “latent defects”. It confirmed that this was a “difficult and complex process” which was why it was unable to provide a timescale for the works.
6. The developer was aware of its findings regarding the internal wall construction.
7. It must be cautious of sharing information which arose from its investigations regarding fire safety so as not to jeopardise any future claim against a third party. It explained that its legal team had advised it to treat the report as confidential for “reasons of legal privilege”.
8. As it was concerned that the construction of the external wall was not safe it had implemented a waking watch and suspended the stay put policy. It confirmed that once a new fire alarm system was installed it would review the need for the waking watch in consultation with the fire brigade.
9. It would keep leaseholders updated on the progress of its investigation and provide updates “every time there was a significant development”.
10. It would not pass any costs of the Building Safety Record onto leaseholders.
11. It was currently investigating “other buildings” and it would discuss the outcome with residents once known.
12. Its Director of Building Safety would be joining the building’s resident meeting on 6 August 2020.
13. It was happy to accept the resident’s original letter as the start of its complaint procedure.
On 6 August 2020 the landlord attended the building’s resident meeting to answer questions from residents regarding fire safety.
On 7 August 2020 the resident wrote to the landlord following the meeting. Within his correspondence the resident requested that the landlord:
1. Provide the National House Building Council (NHBC) documentation for the building and individual properties.
2. Complete a new FRA as he believed that the most recent one was undertaken “without the care and attention required” as it was “inaccurate”.
3. Respond to a list of 12 “deficiencies” that he had identified in the FRA.
4. Respond to a list of 20 “defects” that he had identified in the FRA.
5. Confirm the action that it was going to take in relation to the 20 “defects” identified in the FRA.
6. Provide copies of the FRA for the commercial units attached to the building.
7. Provide confirmation detailing the legal privilege of the report.
The Ombudsman understands from the evidence available for review that on 10 August 2020 the landlord wrote to the resident responding to the concerns and queries which he had raised in relation to an NHBC claim in relation to the fire remediation works. The Ombudsman has not been provided with a copy of this document.
On 12 August 2020 the landlord wrote to the resident concerning the report. In summary the landlord said:
1. The report was prepared in advance of potential legal action with a view to brining a claim against those responsible for constructing the building. It explained that the report was now being used by its solicitors “for this very purpose” and was therefore “subject to legal and litigation privilege”.
2. While it was unable to provide a copy of the report it was able to share the report findings as follows:
  1. “The external fabric of the building [was] solid brick which [would] stop the risk of fire spreading over the external surface of the building”.
  2. “The balconies, though they contained timber, [did] not present a significant risk to health and safety in the event of a fire”.
  3. “The fire-doors and common parts [were] in good condition and [had] been well maintained. They [did] not present a significant risk to health and safety in the event of a fire”.
  4. “There [was] a risk of unseen spread of fire and smoke through cavities in the external wall system”.
3. In light of the findings from the report it was “taking all necessary steps in order to ensure the safety of [all residents]”. It confirmed this included:
  1. Instructing architectural and fire safety experts to inspect the building. It confirmed that where remedial works were identified it would prepare a specification of works to remediate parts of the external wall system.
  1. It had put in place interim safety measures including a waking watch, updating the evacuation policy, installing a temporary linked-alarm system and working with the fire brigade who were “satisfied with the precautions [it had] put in place”.
On 14 August 2020 the resident responded to the landlord. In summary he said:
1. He was unhappy with the landlord’s approach in responding to his correspondence. He explained that the drafting style adopted by the landlord involved separating his questions from its answers which resulted in the “thrust of the question [being] ignored”. He stated that going forward the landlord should respond in the format requested.
2. During the meeting on 6 August 2020 the landlord had “explicitly committed to disclosing legal advice” from its solicitors regarding the report. He stated that it was therefore unsatisfactory that the landlord had failed to do so within its letter dated 12 August 2020.
3. He was concerned that the report may contain errors as the FRA was inaccurate.
On 25 August 2020 the landlord wrote to all leaseholders in response to the “issues identified” in the FRA. The landlord provided a response to each of the deficiencies and defects raised by the resident. Within the correspondence the landlord reiterated that “due to legal privilege [it was] not able to release the consultants reports because this would affect our ability to recover costs from third parties…”
On 26 August 2020 the resident replied to the landlord. The resident stated that it was unsatisfactory that the landlord had failed to respond directly to all questions raised and information requested. The resident noted that an “action tracker” had been provided to the landlord to complete for ease, however the landlord had ignored it.
On 5 September 2020 the resident chased the landlord for a response to his most recent correspondence.
On 6 September 2020 the landlord replied confirming that it had “provided as full an answer as [it could] to any questions about the fire risk assessment”. The landlord added that the FRA actions were “appropriate and proportionate”. The landlord noted that it had “many more blocks in [its] stock that required detailed investigation”.
On 10 September 2020 the landlord provided a response to the resident’s correspondence dated 7 August 2020 in the format he requested. In summary the landlord said:
1. It had provided a detailed response to the resident’s concerns regarding the FRA on 25 August 2020.
2. The resident’s points regarding the NHBC had been responded to in its email dated 10 August 2020.
3. It would not be commissioning a new FRA as it considered the existing one to be “suitable and sufficient”.
4. During the meeting on 6 August 2020 it explained the building sign-off procedure and the different parties involved. It confirmed that the building was signed-off by “all appropriate parties”.
5. While it noted that the resident disputed its position on legal privilege concerning the report, its position remained the same.
On 11 September 2020 the resident wrote to the landlord in response to its correspondence dated 6 September 2020. The resident stated that it was unsatisfactory that the landlord was refusing to engage with him and was taking a “closed-minded approach”. The resident noted that it was also concerning that despite reporting many inaccuracies with the FRA the landlord was accepting it as appropriate. The resident asked the landlord to confirm its position in relation to the complaint procedure.
On 14 September 2020 the resident responded to the landlord’s notification that a stage one complaint would be logged. The resident stated that the complaint should be at stage two of its process rather than stage one as the landlord had acknowledged in August 2020 that the complaint process had commenced.
On 2 October 2020 the landlord provided its stage one response. In summary the landlord said:
1. Since the resident’s meeting it had attempted to resolve concerns the resident had raised at the initial stage of its complaint procedure known as “expression of dissatisfaction”.
2. Despite the responses it had given since July 2020 the resident was not happy with the answers which it had provided.
3. It would not be releasing the report as its solicitors had advised that it was subject to legal privilege. It explained that it did not want to release anything into the public domain that could jeopardise its claim against the developer. It noted that it was “making every effort to mitigate any costs that may be passed on to its leaseholders”.
4. It had responded to the resident’s concerns regarding the FRA on 25 August 2020.
The landlord concluded by confirming that the resident may request to escalate the complaint if he was unhappy with its response.
On 5 October 2020 the resident requested to escalate the complaint. In summary the resident said:
1. The landlord’s stage one response made it clear that it intended to ignore the questions which he had raised in relation to fire safety.
2. The landlord had failed to apologise for delays in responding to correspondence.
3. The landlord had made false claims of legal privilege concerning the report.
4. The landlord had failed to follow its own complaint procedure.
5. The landlord had drafted its response “so as to obfuscate”.
6. The landlord had not provided a satisfactory response to his concerns regarding inaccuracies with the FRA.
7. Despite committing to sharing legal advice concerning the disclosure of the report during the meeting it had not done so.
Within his stage two complaint the resident also noted that:
1. It was concerning that the landlord disputed that it had made a claim against leaseholders with the FTT, when it had. The Ombudsman understands this was in relation to the upgraded fire alarm system.
2. The landlord’s organisation to install the new fire alarm system in the building had “been woeful”.
3. He intended to refer the complaint to the Housing Ombudsman following the conclusion of the landlord’s complaint procedure.
On 30 October 2020 the landlord provided its stage two, final, response. In summary the landlord said:
1. It was sorry for the delay in providing its response.
2. At stage one of the complaint procedure it will attempt to work with residents to understand what is outstanding and what needs to be done to resolve issues. It confirmed that stage two was to review the stage one complaint and to respond to any issues which the resident feels remains outstanding.
3. It was disappointing that the resident had stated his intention to refer the matter to the Housing Ombudsman prior to its stage two response and without giving it the opportunity to further address his concerns.
4. It had attempted to discuss the resident’s complaint with him by phone however it had not received a response to its request.
5. It was sorry for any delays in responding to the resident’s correspondence and requests for information. It explained that this was due to competing demands on its service.
6. In respect of legal privilege:
  1. Its purpose as a non-profit organisation was “about doing the right thing for [its] residents”.
  2. Its solicitors had advised it not to distribute the report while matters were in discussion and therefore it would be “irresponsible” for it to act against the advice.
  3. It was not clear why the resident wished for the report to be disclosed when he had been advised that this could jeopardise matters in relation to the cost of the remediation works.
7. In respect of its complaint procedure:
  1. It agreed that it had not been clear where the resident was in the complaint process since August 2020.
  1. It should have allocated a single point of contact.
  2. It did not believe that it was “intentionally trying to obfuscate the complaint process” as it was taking the view of the best way to resolve the issues raised.
8. In respect of drafting documents so as to obfuscate:
  1. While it had not responded to the resident’s correspondence in the format he specified, this did not mean that its intention was to obfuscate.
  1. It had responded in the format which it felt was most appropriate.
9. In respect of the FRA:
  1. The responses it had provided in relation to the FRA were sufficient and proportionate.
  1. It noted that it had not responded to the resident’s correspondence dated 11 September 2020 however noted that the issues raised had already been responded to in previous correspondence.
10. In respect of disclosure of legal advice relating to the report:
  1. Its legal team provided a legal service to it which it commissioned for the benefit of its residents.
  1. It was not for its legal team to justify its reasoning to its residents.
  2. If the resident disagreed with its position regarding legal advice he should seek his own legal advice.
  3. It would always be its intention to share information in order to be open and transparent, however it must act upon legal advice obtained.
The landlord concluded by confirming that the resident may refer his complaint to this Service if he was unhappy with its response.

Assessment and findings

The Ombudsman acknowledges the leaseholders’ current situation and concerns regarding the fire safety of the building. The Ombudsman appreciates that until the remedial works are completed the leaseholders will want reassurance that their properties are safe. It is clear from the evidence for review that the resident has spent a significant amount of time pursuing the landlord for information in order to satisfy himself and the leaseholders of the safety of the building.
On beginning the investigation into the resident’s complaint the Ombudsman requested that the landlord provide some additional documentation to us. This included a copy of the FRA in place at the time of the complaint, the Building Safety Record, a copy of any section 20 Notices issued to leaseholders in relation to the fire safety works and a copy of the report. Even with the Ombudsman acceding to the landlord’s request for a three week extension to provide the information, the information was not provided. The landlord said that despite checking on its “systems and with as many people as [it] could, [it could] not locate the further information requested”. It is unacceptable that the landlord has been unable to provide the requested information to the Ombudsman as the landlord should have systems in place to maintain accurate records..
The Ombudsman makes requests for information in order to ensure that we carry out a complete and thorough investigation of the matters subject of a complaint. This should reassure a resident where the Ombudsman makes a finding of no maladministration that all information has been carefully considered, or clearly evidence why we have made a maladministration finding.
The Ombudsman is particularly concerned in this case as the information that the landlord has failed to provide relates to building and fire safety, which are crucial issues for housing management and of relevance to a number of properties and residents.
The focus of the investigation in this case is the landlord’s response to the resident’s queries. Nonetheless, given the concerns about the landlord’s failure to provide information to us to support its position in relation to the evidence it relied on, the Ombudsman has made a separate finding of maladministration in relation to the landlord’s record keeping. While the information has not been provided to the Ombudsman, the Ombudsman notes that the information was available to the landlord at the time of the complaint being considered and that some of the information was provided to the resident at that time.

The landlord’s response to the resident’s concerns and requests for information regarding fire safety in the building which he owns a property

The evidence shows that the landlord is taking steps to comply with the Government’s guidance, as noted in the background section of this report, as it commissioned an investigation into the external wall cavities of the building and has committed to rectifying the issues identified. This is appropriate, as while the guidance was not a legal requirement, it had been established as best practice in relation to building safety. The Ombudsman understands that the report was provided to the landlord in spring 2020.
The landlord’s communication:
1. Following the landlord’s correspondence dated 8 June 2020 notifying leaseholders of a potential fire safety concern with the external wall system on the building, as highlighted by the report, the evidence shows that the landlord did engage with the resident regarding his concerns and requests for information regarding fire safety. This was appropriate. The chronology of the landlord’s communication between July 2020 and the October 2020, the date of the landlord’s final response, highlights generally prompt responses to the queries received with no significant delays.
2. It is clear that the resident had carefully considered queries and issues which he wanted the landlord to address and it is understandable that he wanted it to respond using a suggested format, however it is reasonable for a landlord to respond in the format which it believes is the most appropriate and helpful in addressing the issues raised.
3. While the landlord did not respond to the resident’s correspondence in the format which he requested, this does not amount to a service failure. This is because in responding to the resident the landlord’s responses demonstrated that it was seeking to address all points raised by providing clear reasons and explanations. The Ombudsman has not identified any evidence which suggests that the landlord was being evasive or unreasonably withholding information, or withholding information without explanation.
The landlord’s response to concerns regarding the safety of the building while the remediation works are outstanding:
1. In response to the fire concerns identified in relation to the construction of the building the landlord engaged a waking watch, updated the building’s evacuation policy and installed an interlinked fire alarm system. This was appropriate as the landlord was required to ensure that appropriate risk-reducing controls and counter measures were put in place until the remediation works were completed to address the fire stopping properties within the wall cavities. The Ombudsman notes these measures have been implemented by other landlords across the industry as recognised control measures where cladding or fire safety issues had been identified.
2. The evidence shows that the landlord shared its risk reducing measures with the resident, and leaseholders, within its first correspondence dated 8 June 2020. This was appropriate, in order to demonstrate that it took the situation seriously and it was seeking to mitigate the impact of any potential future fire.
The landlord’s response to concerns regarding deficiencies in the FRA:
1. In response to the list of deficiencies and defects raised by the resident on 7 August 2020 in relation to the FRA assessment the landlord responded to each individual concern raised providing explanations, further clarity, actions undertaken and next steps/ actions to mitigate identified risks. While the Ombudsman is not able to assess whether the landlord’s responses to the concerns raised were reasonable or not, as this would require the judgement of a fire expert who has sufficient expertise and knowledge in relation to fire safety, it was appropriate that the landlord responded to each of the concerns as it should provide adequate reason and explanation to support its actions and how it is meeting its obligations.
The landlord’s decision to not disclose the report:
1. In response to the resident’s request to disclose a copy of the report the landlord refused the request. In refusing the request the landlord confirmed that it was unable to share the report, on the advice of its solicitor, as the report was subject to legal privilege. It further explained that sharing the report may jeopardise a future claim against the developer for costs related to the remediation works.
2. Although the resident may not agree with the landlord’s position, in the Ombudsman’s view its position was reasonable as it had explained why it wanted to preserve the confidentiality of the document, including for the benefit of leaseholders. It would be irresponsible for the landlord to go against the advice of its own solicitors.
3. While the landlord was unable to share the report, the evidence shows that on 12 August 2021 it did share the report findings. As the landlord was unable to share the report in full, this was a reasonable approach in order to highlight the key themes identified and to assist the resident in understanding the current position.
The landlord’s response to concerns regarding costs associated with the remediation works:
1. The property’s lease:
  1. Sets out that service charges means the “moneys actually expended or reserved for periodical expenditure by or on behalf of the landlord… in carrying out or procuring the performance of the obligations specified in schedule 11”.
  2. Schedule 11 confirms the “services to be provided and obligations to be discharged by the landlord” which include to keep in good and substantial repair and condition the building.
  3. Schedule 3 of the lease sets out that the leaseholder will pay the landlord “the tenant’s proportion of the service charge costs”.
2. In line with the terms of the lease agreement for the property it was appropriate that the landlord explained that costs for the remediation works, in addition to the waking watch and upgraded fire alarm, could be recharged to the leaseholders.
3. It was appropriate that the landlord explained that consultation notices would be issued for the remediation works. This is because under section 20 of the Landlord and Tenant Act 1985 (the Act) a leaseholder has the right to be consulted about charges for running or maintaining the building if they are required to pay £250 for planned work or £100 per year for work and services lasting more than 12 months, and the landlord understood that the works would likely exceed these amounts.
4. The Ombudsman understands from the available evidence that the landlord applied to the FTT for dispensation from the section 20 consultation process in relation to the upgraded fire alarm system. While the Ombudsman is not aware of the outcome of the application, the landlord was entitled to make the application as it considered that the work was needed so urgently that it would not have had time to consult with the leaseholders. It would be a matter for the FTT to consider whether dispensation should be agreed and whether any associated costs should/ could be recharged to the leaseholders.
5. It would have been irresponsible for the landlord to have promised the leaseholders that no costs would be incurred in relation to the fire safety works, taking into account the terms of the lease agreement. While the landlord could not make any guarantees in relation to recharges it explained that it was seeking to avoid recharges by exploring insurances and warranties, funding by the Government and by pursuing the developer. It was appropriate that the landlord was seeking to avoid any recharges to the leaseholders as it was aware that the issues were not as a result of any fault or omission by them. The Ombudsman can see in later updates following the end of the complaint procedure that the landlord is pursing these alternative routes in relation to the cost of the remediation works.
The landlord’s continued response following the conclusion of the complaint procedure:
1. Following the landlord’s final response the Ombudsman can see that it has created a dedicated webpage on its website to provide “building safety updates”, with the option of signing up for email alerts, in relation to the remediation works including costs. This is appropriate in order to keep the leaseholders informed of progress and to manage their expectations in relation to timescales.
2. The Ombudsman notes that the latest update for the building dated spring 2023 sets out that “progress [had] been made on an outline remediation programme, which [was] currently under review… According to [the developer] they anticipate being in a position to start remedial work later this year, however this [would] be dependent on the outcome of the intrusive surveys into the external walls… As soon as the engineer has completed their report [it would] ask [the developer] to provide [it] with a full and detailed programme of work…”. From the website the Ombudsman can also see that the NHBC had approached the developer to get confirmation as to whether it was going to remediate the items accepted as valid within the insurance claims.

The landlord’s complaint handling

From review of the chronology of the complaint the Ombudsman has identified a shortfall in relation to the landlord’s complaint handling. Despite agreeing, on 4 August 2020, that it was happy to accept the resident’s correspondence dated 7 July 2020 as the commencement of its complaint procedure there is no evidence that it did so. On confirming that it had accepted the resident’s correspondence dated 7 July 2020 as a formal complaint the landlord should have either:
1. Confirmed that one of its earlier responses should be taken as its stage one response in addition to setting out the resident’s right to escalate the complaint, or;
2. Provided a stage one response.
In failing to do so the resident was left unclear as to the position of his complaint within the landlord’s complaint process at that time. This is demonstrated by the resident’s contact on 11 September 2020 where he requested confirmation detailing the landlord’s position in relation to the complaint. On receipt of the resident’s correspondence the landlord responded swiftly to the complaint at both stages of its complaint procedure which was appropriate. As the landlord did promptly respond to the resident’s complaint following his contact in September 2020, this does not amount to a service failure as there has been no significant adverse impact on the resident.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was:
1. No maladministration by the landlord in respect of its response to the resident’s concerns and requests for information regarding fire safety in the building in which he owns a property.
2. No maladministration by the landlord in respect of its complaint handling.
3. Maladministration by the landlord in respect of its record keeping.

Reasons

The landlord’s response to the resident’s concerns and requests for information regarding fire safety in the building which he owns a property

The landlord’s response to the resident concerns and requests for information regarding fire safety was reasonable as it responded by addressing all points raised by providing clear reasons and explanations, including in relation to fire safety, deficiencies in the FRA, disclosure of the report and costs associated with the remediation works.

The landlord’s complaint handling

Although the landlord failed to process the resident’s complaint following its acceptance of his correspondence dated 7 July 2020 as commencement of the complaint process this does not amount to a service failure. This is because following the resident’s chaser for a formal complaint response the landlord then promptly responded to the complaint through its complaint procedure, thus resulting in no significant adverse impact on the resident.

The landlord’s record keeping

The landlord has failed to demonstrate that it has kept appropriate records relating to building and fire safety.

Orders

The landlord should provide the following information to the Ombudsman within four weeks of the date of this determination. Where the information is not available the landlord should explain why, in addition to explaining how it is mitigating the associated risk due to the absence of the documentation.
1. Copies of the FRA for the building covering the period 2020 to 2023.
2. Copy of the Building Safety Record.
3. Copy of the report following the external wall investigation.
4. Any Section 20 notices issued to leaseholders in relation to the fire safety works.
The landlord should undertake a review of its arrangements for the provision of information to its internal complaints team in order to support its own complaint procedure and in order for it to respond to the Ombudsman’s requests for information for an investigation. The landlord should write to the Ombudsman within six weeks of the date of this determination, detailing the outcome of its review and a timeline for any actions for process improvements. As part of this review the landlord should consider the Ombudsman’s Spotlight Report on Knowledge and Information Management, completing a self-assessment against the report recommendations if it has not already done so. Details of the landlord’s self-assessment should also be provided to the Ombudsman within the same timeframe.
The landlord should pay the resident £300 compensation within four weeks of the date of this determination in recognition of its failure to disclose documentation to the Ombudsman in relation to the complaint which he brought to this Service.

Recommendations

The Ombudsman notes that the last update on the landlord’s website related to the building is dated May 2023. The landlord should review the current situation to ensure that the most up-to-date information is available on the website. Further the landlord should ensure that appropriate communication is in place to keep residents who have not signed up for email alerts via the website to keep them informed of the situation.
The landlord should liaise with its legal team in relation to the report to establish if the report may now be shared with residents.