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Peabody Trust (202318876)

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REPORT

COMPLAINT 202318876

Peabody Trust

28 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 was about:
    1. The landlord’s response to the resident’s concerns about the quality of fire safety works, its contractors and her request that the landlord pay for the fire safety works. 
    2. The consultation for and the costs of fire safety works.

Background

  1. The resident is a shared ownership leaseholder of a 2-bedroom flat in the basement of a two-storey building.

Jurisdiction

  1. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why we will not investigate a complaint.
  2. The Housing Ombudsman Scheme states that:
    1. Under paragraph 42(d), the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, concern the level of rent or service charge or the amount of the rent or service charge increase.
    2. Under paragraph 42(f), the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure.
  3. The Landlord and Tenant Act 1985 regulates the rights and responsibilities of how the landlord manages service charges and, in particular, under Section 20 of the Act, that it must consult residents where costs are likely to exceed £250 per property. This complaint would require a forensic analysis of the accounts and a determination of the law which is not within the remit of the Ombudsman to carry out. In the view of the Ombudsman, this is best suited to the First Tier Tribunal (Property Chamber – Residential Property).
  4. After carefully considering all the evidence, we have determined that the following complaint is not within the Ombudsman’s jurisdiction:
    1. The consultation and the costs for the fire safety works
  5. This would include the landlord’s right under the lease to charge the resident for the fire safety works.

Policy and legal framework

  1. The landlord informed us that it did not have a copy of the lease. However, it is reasonable to assume that the leaseholder has an obligation to pay service charges, where the landlord carried out works under their obligations in the lease. We have not made a decision whether the service charges were properly charged as we have decided this would be outside our jurisdiction.

Chronology

  1. According to both parties, the landlord wrote to the resident on 6 December 2022 notifying her under Section 20 of the Landlord and Tenant Act 1985 that it intended to carry out fire safety works. The works arose from a Fire Risk Assessment (FRA). We understand that those works were, according to a job sheet dated 13 October 2022, to carry out compartmentation in the building. The purpose of compartmentation is to slow down the spread of fire. We understand from the complaint that the area in question was the loft of the building. According to the job sheet, the survey showed that the relevant area of the building was not compliant with fire regulations. The non-complaint reasons consisted of “no firestopping installed” and no firestopping to the head of the wall. Remediation was required, which consisted of a “fire stop using a tested system”.
  2. According to the resident’s complaint, the landlord sent a further Notice of Intention on 17 January 2023 to carry out the remediation works. The notice stated that it had obtained 2 estimates for the works. We understand that those estimates were enclosed.
  3. On 24 April 2023, the resident made a complaint as follows:
    1. On receipt of the Notice of Intention, the resident had requested “a detailed breakdown” of the costs as the price seemed excessive for the scope of works. In the meantime, her tenant informed her that the works had already been undertaken and that she had photographic proof that the materials used were not the materials quoted for.
    2. She had not agreed to pay for the works. She was concerned that that although the landlord had applied the sinking fund to the costs, this would mean that there would be no remaining funds to pay for other works.
    3. She asked the following:
      1. Who decided that the leaseholders should pay?
      2. What fire regulations applied to this case and which had been breached?
      3. Who decided what work were needed?
      4. She was concerned that she would be billed for the remaining sum of over £11,000 and she asked how she could be expected to pay, given the increase in the cost of living. She did not have the means to pay and was unable to borrow the money.
    4. She wanted the landlord to meet the costs of the works.
  4. On 9 May 2023, the landlord wrote to the resident as follows:
    1. It set out the resident’s complaint and added she was also complaining about the quality of the works and the contractors that carried it out. She also wanted to know whether the works were necessary.
    2. The (initial) Notice of Intention was designed to give an overview of the works and the reasons for needing to carry them out. No “formal” costs information had been available at that stage.
    3. While the notice was sent over the Christmas period, the landlord had complied with the statutory consultation process. It had allowed slightly more than the statutory 30 days for observations from leaseholders. Its offices had been open at the time. Observations were invited by email or post.
    4. It was a requirement under the Regulatory Reform (Fire Safety) Order for the responsible person to assess the risk with regard to current standards. It was the opinion of an accredited assessor’s of the risk within the building. The severity of each identified risk had been measured and the impact on the overall safety of the building recorded.
    5. The works recommended by the FRA were to bring the building to a “tolerable level of safety” for both the occupants and the asset.
    6. For buildings below 11 metres, it took a more pragmatic approach. It was assessed against the landlord’s obligations under the Lease to protect the residents and maintain the building.
    7. It had deferred to the accredited engineer’s opinions and would “always” err on the side of caution.
    8. It explained how the contractor was chosen, in terms of cost and quality.
    9. Leaseholders were required to contribute towards works in the building in accordance with their lease agreement
    10. The landlord owned “thousands of blocks” and was unable to fund works on behalf of leaseholders. It paid the proportion attributable to their tenants.
    11. 5 years was the maximum repayment period, which was interest free.
  5. On 9 May 2023, the resident requested to escalate the complaint to stage 2 as follows:
    1. She was disappointed that the consultation period was over Christmas.
    2. The fact the contractors had moved their materials onto site prior to the end of this period meant that the work was going ahead, whether the leaseholders commented or not. What was the point of a consultation period if this was “a done deal?” How could leaseholders make an informed decision about value for money without costs information?
    3. She had had concerns that the quality of materials used.
    4. The level of fire prevention was not appropriate for the size of the block.
    5. What did “a more pragmatic approach” mean?
    6. She requested a copy of the accredited assessor’s report.
    7. The amount was still too much to pay over a short period.
  6. The landlord resent its Stage 1 complaint response on 17 May 2023 but in a formal format.
  7. On 13 June 2023, the landlord wrote with its Stage 2 response as follows:
    1. There was nothing to prevent a consultation taking place over the holiday season. The timing had not been intentional. Leaseholders had the opportunity to nominate a contractor to do the works. No resident did so.
    2. It had provided leaseholders with costs during the “second” consultation period from 17 January to 18 February 2023. The landlord was not required to provide costs at the initial consultation period.
    3. There was an issue with the incorrect material being used which had since been rectified.
    4. There was a legal requirement for a landlord to provide a FRA for a building, but not the report that addressed required fire safety works to the building to be made public. It did not release internal reports to residents. She could request the FRA.
    5. Complying with fire safety requirements was a legal requirement of a landlord. The report that was carried out by an accredited Fire Assessor who would identify and carry out all works that were legally required.
    6. A pragmatic approach meant carrying out the works required in order to comply with the relevant legislation and the findings of the Fire Assessor’s report.
    7. The sinking fund was in place to help leaseholders deal with the costs of required works. Given the costs involved with these works, it was therefore prudent to offset these with the money in the fund.
    8. Its complaints policy stated that the landlord should respond to a complaint within ten working days at Stage 1 and in 20 working days at Stage Two. It had not identified any service failures with its complaint handling.

Assessment and findings

  1. The Regulatory Reform (Fire Safety) Order 2005 applies to all workplaces and the common parts of buildings containing 2 or more domestic premises. It places legal duties on anyone in control of these premises (the Responsible Person – usually the owner or landlord) to undertake and record a fire risk assessment and put in place and maintain general fire precautions. While this legislation imposed a duty on the landlord, referring to the 2005 order did not wholly address the resident’s question about what fire regulations had been breached. The landlord’s explanation that it took “a pragmatic approach” could have been clearer.  While there are additional requirements for buildings over 11m high, all blocks of flats, regardless of height, are subject to fire regulations. The requirements and necessity for the works required would have been set out in the FRA.
  2. The landlord did not provide us with all the documents we requested., We have not seen the FRA. We saw the job raised by the landlord which appeared to quote from an assessment or report. We have therefore accepted that the FRA stated that the area was not compliant with fire regulations. The landlord was entitled to rely on the opinion of the qualified fire assessor. The assessment would have been specific for the building. There was no evidence that the works were not necessary. The landlord’s explanation that it would comply with fire regulations was reasonable. We would expect the landlord to prioritise fire safety.
  3. The correspondence indicated that while the contractors moved their materials into the property, the works had not been carried out prior to the consultation period. The resident was unhappy that the consultation spanned the festive period. We consider that the requirement to progress the works would override the consideration for the festive period and any leave time. The period in any event did not only span the festive period itself and the landlord also extended the period slightly beyond the required 30 days.
  4. The landlord’s position that the materials was rectified was reasonable and addressed that aspect of the resident’s complaint. The landlord was entitled to make its choice of contractors. Residents had had an opportunity to propose alternatives. Its explanation how it chose contractors was reasonable as it weigh up quality and costs.
  5. We understand that the remaining costs, even if spread over 5 years, were significant. However, this would not justify the landlord taking over the burden of the costs. As a social landlord, it had a duty to preserve its funds. We will, however, make a recommendation that the landlord offer to signpost residents to money advice.

Determination

  1. In accordance with Paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in relation to the resident’s concerns about the carrying out of fire safety works.
  2. In the opinion of the Ombudsman, in accordance with paragraphs 42(d) and (f)  of the Housing Ombudsman Scheme, the following complaint is outside of the Ombudsman’s jurisdiction.
    1. The consultation for and the costs of fire safety works.

Recommendation

  1. The Ombudsman makes the following recommendations:
    1. The landlord should ensure that it addresses specific questions about fire safety with adequate detail.
    2. The landlord offers to signpost residents to money advice where they express concerns about affordability, cost of living and difficulty paying bills.
  2. The landlord should feed back its response to the Ombudsman within 4 weeks.