Spitalfields Housing Association Limited (202003302)

REPORT

COMPLAINT 202003302

Spitalfields Housing Association Limited

5 August 2024

Our approach

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

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

The complaint

The complaint is about:
1. The landlord’s handling of the resident’s request for information about the removal and replacement of cladding on the building.
2. The landlord’s response to enquiries made by the resident relating to fire safety and the EWS1 certificate.
3. The landlord’s handling of the complaint.

Background and summary of events

Background

The resident is a shared owner and purchased a 25% share of the property from the landlord in December 2015. He pays rent on the remaining proportion of the property. The landlord is the freeholder.
The resident’s property is a 2-bedroom ground-floor flat within a larger 5-storey block of 4 flats.
In June 2017, soon after the Grenfell fire, the landlord advised the resident and other leaseholders in the block that the cladding on the building did not have sufficient fire-retardant properties. In May 2019 the resident emailed the landlord as he was concerned that residents were unable to obtain mortgages on their properties due to the cladding. Between May 2019 and July 2020 the resident contacted the landlord and asked for updates on the cladding issue.
In July 2020 the resident made a formal complaint to the landlord. This Service contacted the landlord several times and asked it to respond to the resident’s complaint. The landlord provided a stage 1 complaint response in May 2022 and, following the resident’s escalation request, provided a stage 2 complaint response in December 2022.
The landlord wrote to the resident on 3 October 2022 to state that it was ‘currently working with our consultants and subcontractors towards obtaining the new EWS1 certificate’. A copy of this certificate has not been provided to this Service. The landlord has indicated that it is still working with its lawyers to obtain the certificate.

Fire safety regulations

The Regulatory Reform (Fire Safety) Order 2005 requires the responsible person (landlord or building owner) to carry out regular fire risk assessments (FRA) in the common areas of blocks of flats and take action to minimise the risk of fire.
Following the tragic events of Grenfell in June 2017, in December 2018 the government issued ‘Advice Note 14’ as part of its building safety programme. This set out expectations on owners of buildings of over 18 metres in height where the external wall system of the building did not contain aluminium composite material (ACM). The advice outlined checks which owners could carry out to satisfy themselves, and their leaseholders, that the building was safe.
In January 2020 this guidance was consolidated in ‘Building Safety Advice for Building Owners’. Paragraph 1.4 of this guidance states “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”.
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 value of £0. This effectively halted the sale of such properties, leaving residents in high-rise blocks unable to sell and ‘stuck’ in their properties.
In January 2020 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 meters (six storeys). Form EWS1 was introduced to prove to lenders that external cladding had been assessed by an expert.
In March 2021, the RICS issued new proposed guidance which sought to remove the need for an EWS1 form for buildings taller than 18m with no cladding, as well as buildings of under six storeys with less than a quarter of the external wall covered in non-metal composite cladding. The guidance came into force on 5 April 2021.
The Building Safety Act came into force on 28 April 2022. The Act offers protections to qualifying leaseholders from the cost of works to resolve historical building safety defects.
The resident has stated that the height of the building, according to reference drawings provided by the developer, is 18.375 metres.

The lease

The lease states that the landlord will maintain, repair, renew and where required improve the structure of the building including external walls.
The lease also states that the landlord may recharge the resident for “all expenditure reasonably incurred” by the landlord in relation to the repair, management, maintenance and provision of services within the building.

Complaints policy

The landlord has provided this Service with a copy of its complaints policy. The policy provided outlines a 2-stage complaints process. The landlord aims to respond to stage 1 complaints within 10 working days and to stage 2 complaints within 20 working days.
It is noted that the version of the landlord’s complaint policy which is available on its website is not the same version as was provided to this Service. The landlord’s website details a third complaint stage which will be considered by a board member, scrutiny panel member and senior staff and responded to within a further 20 workings days.
The version of the complaint policy on the landlord’s website does not direct residents to contact this Service if it remains dissatisfied with its final complaint response.

Scope of the investigation

Paragraph 41 (b) of the Scheme states that the Ombudsman cannot consider complaints which, in the Ombudsman’s opinion concern matters which do not relate to the actions or omissions of a member of the Scheme. The developer of the building is not members of the Scheme and therefore this Service does not have jurisdiction to investigate their actions. This assessment therefore focuses on the actions of the landlord.

Events prior to the landlord’s internal complaint process

On 21 June 2017, following the Grenfell fire, the landlord wrote to all leaseholders in the resident’s building and advised that it would be reviewing Fire Risk Assessments (FRA’s) for all blocks of flats. It said that it would send samples of the cladding on the building for testing by a government appointed specialist.
The cladding testing results stated that the samples from the resident’s building were found to be “Category 3”. This was the lowest possible rating and meant it “had no flame retardant properties” and was therefore did “not meet the requirements for limited combustibility” set out in building regulations for England covering fire safety.
A FRA for the block carried out on 21 June 2017 stated:
1. There was ACM cladding on the outside of the block.
2. The cladding had been tested and deemed to have “no flame retardant properties”. There was also an “unknown insulation material” under the cladding.
3. The block was under 18m in height and was more than 1m away from any surrounding buildings. Therefore it was exempt from combustibility provisions under current building regulation guidance.
4. While the building complied with existing national guidance, it was recommended that the landlord “keep abreast of any technical changes” which may introduce additional control measures.
5. A further FRA should be carried out in June 2018.
The landlord wrote to the residents again on 30 June 2017. It said that, following testing, while the cladding on the building met building regulations at the time it was installed, the tests showed it did “not provide the level of fire resistance [the landlord] had thought”. The landlord advised that it had contacted the fire brigade and its fire safety consultant to advise on any action that needed to be taken. It said that it would keep residents informed.
On 20 May 2019 the resident emailed the landlord and said that residents had had mortgage applications refused “because of flammable cladding on [the] building”. He said this was concerning from a safety perspective and also from a financial perspective as leaseholders may be unable to obtain mortgages or sell their properties. He asked the landlord to confirm:
1. That it would be replacing the cladding.
2. When it would be replaced.
3. That the landlord would be paying for the replacement works and not passing on costs to leaseholders.
The landlord replied to the resident on 21 May 2019 and said that it was “confident that there is no present safety issue with the building” but that it would respond fully when it had been briefed on all aspects of the resident’s query.
The resident emailed the landlord on 31 May 2019 and asked for an update.
On 10 June 2019 the resident and landlord exchanged emails. The resident requested copies of the London Fire Brigade’s inspection, the fire risk assessment and the final build plans showing the height of the building. The landlord provided these the same day. The resident replied on 11 June 2019 to highlight that the building plans showed that the building was above 18 metres and therefore within the scope of the regulations and eligible for a grant to remove the cladding. The landlord responded on 12 June 2019 to confirm it was exploring the option of applying for a grant. On 27 June 2019 the landlord emailed the resident. It said it had contacted the government regarding grant funding for cladding works and had been advised to make an application. The landlord said the matter was a priority for the landlord and it would keep residents informed.
The resident emailed the landlord on 15 July 2019 and asked for an update. He specifically asked whether costs would be passed on to residents and whether the landlord had requested remediation from the building’s developer.
The resident emailed the landlord again on 8 August 2019 and asked for an update. The landlord replied on 12 August 2019 and said it would provide an update later that week.
The landlord emailed the resident and other residents of the building on 16 August 2019. It said that a FRA was carried out in early July 2019 and the landlord was awaiting the final report which it expected to receive the following week. The landlord said its consultant was working on specifications for inspecting the cladding and tendering for the replacement of the cladding. It said that the landlord would “absorb the consultant’s costs” until its confirmed what works would go ahead but that the costs for “external professionals” such as architects would be recharged to residents.
The resident emailed the landlord on 11 September 2019 and asked for an update on the likely costs of the works. He also asked whether the landlord would be passing the costs on to leaseholders and what the developer’s position was regarding remediation.
On 15 October 2019 the resident emailed the landlord and asked for an update. He said no updates had been given by the landlord for 2 months. The landlord replied on the same day and said the investigation was being led by its consultant along with fire safety experts. It said it was aware of the available grant funding and had appointed architects to design a specification for changes as this was a prerequisite for grant funding. The landlord emailed the resident on 11 December 2019. It explained that it had submitted a grant application and noted that it expected an adjustment to the service charge in the next financial year.
On 6 January 2020 the resident emailed the landlord and said he understood that it had completed a grant application for cladding funding. He asked to see the application.
The landlord emailed residents of the building on 22 January 2020 and said:
1. It had completed the grant application but this was not something that would be shared with residents.
2. It was awaiting further information on the grant and would provide an update to residents when it received this.
3. It would send notice of intention letters to recover costs from leaseholders.
4. It was unable to determine what the costs would be until the tender process was complete.

Events during the period of the complaint

The resident emailed the landlord on 28 July 2020 and asked it to raise a formal complaint in relation to:
1. Its handling of his request for information about the removal and replacement of cladding on the building and whether the cost of the works would be passed on to leaseholders.
2. Its failure to pursue claims with the National House Building Council (NHBC) or the developer for the cost of the cladding works.
On 23 September 2020 the building’s developer wrote to residents of the building in response to a letter sent by the resident. This Service has not seen the resident’s initial communication with the developer. It said that it did not “admit liability” for the losses to residents caused by defects in the building. The developer told the residents that in order to consider their claim further they would need to provide “evidence in support of the defects alleged and how they could result in a breach on [the developer’s] part”.
In October 2020 the resident contacted this Service and said he had received no response from the landlord to his formal complaint.
In November 2020 the contractor carrying out recladding and replacement balcony works on behalf of the landlord sent a newsletter to residents. It said that it would be erecting scaffolding from 4 January 2021 and that works were expected to take 4 to 5 weeks to complete. The contractor said it would host a residents meeting in December 2020 to explain the works in more detail.
On 5 November 2020 this Service replied to the resident and said that it appeared that he was complaining on behalf of a group of residents. We advised that we were unable to accept complaints from groups, collectives or associations of residents but that in some circumstances we could consider one resident’s complaint as a lead case for a wider group.
This Service contacted the landlord on 5 November 2020 and asked it to provide the resident with a response. We did not receive a response from the landlord.
The resident wrote to the developer of the building on 15 February 2021 on behalf of a group of residents. He stated that given the information available to the developer it should be able to assess whether the materials used on the buildings were compliant with fire safety requirements. The resident said that the contractor who was removing the cladding and decking from the building had advised that the costs of removal would be covered by the government remediation fund but that this had not been confirmed by the landlord. He also said that the costs of investigatory and follow-up works would not be covered by any grant funding.
On 27 April 2021 the resident confirmed that he was happy for this Service to consider his complaint as a sole complainant rather than a group complaint. He advised that he had still not received a complaint response from the landlord. We wrote to the landlord again on the same date and asked it to respond to the resident. We did not receive a response from the landlord.
On 23 April 2021 the landlord emailed the residents to state that cladding replacement work was scheduled to be completed on 20 May 2021. On 19 May 2021 the landlord emailed residents in the block and said that:
1. All ACM cladding had been removed and the landlord was awaiting replacement cladding for the stairwell fins.
2. This “should be done in a reasonably short period of time” but it could not provide a specific timeframe.
3. An EWS1 certificate would form part of the works and be available on completion.
4. Any further works had “yet to be fully investigated and determined”.
The leaseholders emailed the landlord on 13 occasions between July 2021 and February 2022 stating that it had not received a further update.
On 20 August 2021 the resident contacted this Service and stated that the landlord had not provided any updates to residents regarding the works required to the building or the EWS1 certificate.
This Service wrote to the landlord again on 21 September 2021 and 1 October 2021 and asked it to provide a formal complaint response to the resident. The landlord responded on 11 October 2021 and said that the resident had initiated the Pre-Action Protocol against the developer of the building. It asked if it needed to respond to the resident.
On 11 January 2022 this Service again asked the landlord to issue a complaint response. We stated that the landlord had not presented any evidence that the resident had issued legal proceedings. We also advised that if the resident had started the Pre-Action Protocol, the landlord would be required to consider alternative dispute resolution (which would include this Service).
This Service contacted the resident on 18 February 2022 and said that the landlord had advised that he had initiated the Pre-Action Protocol for legal proceedings. We asked the resident if he had now initiated legal proceedings. The resident responded on the same day and confirmed that he had not commenced any formal legal proceedings in relation to the cladding or EWS1 issue, nor had he sent a pre-action letter to the landlord.
On 6 May 2022 the landlord wrote to the resident. It stated that it had appointed a consultant fire engineer to carry out investigative works to the external walls of the building required in order to obtain an EWS1 certificate. The landlord said that the works would take place by the end of May 2022.
This Service again asked the landlord to issue a complaint response on 16 May 2022 and warned that a Complaint Handling Failure Order (CHFO) may be issued if the landlord did not comply.
The landlord provided its stage 1 complaint response to the resident on 30 May 2022. It said that all the ACM cladding had been successfully removed in September 2021. Its contractors had provided regular updates to residents via meetings and newsletters.
The resident emailed the landlord on 22 August 2022 and requested that it escalate his complaint to stage 2 of its process. He said he was dissatisfied with the landlord’s stage 1 complaint response because:
1. It was “wholly inadequate and misleading”.
2. It failed to acknowledge that it had taken the landlord 22 months to respond to his complaint or provide an apology.
3. The response was inconsistent with the landlord’s previous communications.
4. He wanted the landlord to address:
  1. What the status of the fire safety report was.
  2. What the status of the EWS1 certificate was.
  3. Whether it had served the developer with a defects notice.
  4. How would any further required works be funded.
  5. Why had the landlord failed to respond to enquiries by his MP.
The resident asked the landlord to escalate his complaint to stage 2 of its complaint process on 22 August 2022.
The landlord provided HOS with the requested information on 29 September 2022.
On 4 October 2022 the landlord emailed the resident and attached a letter dated 3 October 2022 titled “ACM cladding update and EWS1”. Within it the landlord stated:
1. It had removed ACM cladding from the building.
2. It was working with its consultants and subcontractors to obtain a “new EWS1 Certificate”.
3. The matter was “very detailed” and it estimated it would take 3 to 4 months to deliver the EWS1. It would update residents “periodically”.
On 24 October 2022 the landlord’s solicitors wrote to the resident and advised that ACM cladding was removed from the building by the landlord in September 2021 and that it was “currently taking active steps to commission an EWS1 form”.
The resident contacted this Service on 7 November 2022 as he had not received a response from the landlord to his stage 2 complaint.
On 18 November 2022 this Service wrote to the landlord and asked it to provide a response to the resident’s stage 2 complaint. The landlord emailed the resident on 23 November 2022 and said it had logged his stage 2 complaint.
On 23 November 2022 the landlord emailed all residents and said it had not yet received the draft fire report but had been advised that the building had been issued a “preliminary B2 classification”.
The landlord emailed all residents on 25 November 2022 and said it was still awaiting the draft fire report but was “confident” it would have “an interim remedial plan for review” by the end of the following week.
On 1 and 9 December 2022 the landlord emailed all residents and stated that it was still awaiting the draft fire report from the engineer so had no new update to provide.
The landlord provided its stage 2 complaint response on 16 December 2022. It stated:
1. It had received the draft fire safety report and advised the resident of this on 23 November 2022.
2. The draft EWS1 gave the building a B2 rating. The landlord was considering whether remedial works were required and who was liable for the works.
3. When the full fire safety report was received the landlord would be seeking legal advice about remedial works and the liability for those works.
4. The landlord was unaware of an enquiry from the resident’s MP and requested further information.
5. The landlord had now closed the resident’s complaint. If he remained dissatisfied he could contact the Ombudsman.
The resident escalated his complaint to this Service on 13 February 2023. He stated that he was dissatisfied with the landlord’s final response because:
1. The landlord had not confirmed whether the finalised FRA had been received. It had not provided an explanation for the “significant delays” in providing the report nor had it stated whether it intended to share the report with residents.
2. The landlord had failed to issue an EWS1 certificate despite asserting that one could be obtained with a B2 fire safety rating.
3. The landlord had not said whether it had notified the NHBC or the developer of the defects which were first found more than 5 years previously.
4. The resident had evidence that the landlord had ignored several contacts by the MP.
The landlord has provided this Service with an FRA report for the building dated 14 February 2023. The report stated that the cladding materials could not be identified. The landlord must ensure all cladding complies with Publicly Available Specification (PAS) 9980.
The resident emailed the landlord on 21 March 2023 and said that it remained impossible for leaseholders in the block to sell their flats. He said he had been advised by an estate agent that in some cases, mortgage lenders were satisfied if landlords confirmed in writing that the cost of remedial works would not be passed on to leaseholders. He asked the landlord to confirm the status of the EWS1 and whether the landlord intended to pursue leaseholders for further remedial costs.
On 23 March 2023 the landlord’s solicitors wrote to the resident and said the landlord was not yet in a position to provide an EWS1 form. It said it was in the process of “raising all fire safety related works with the developer”. The solicitor stated that the developer had signed up to the government’s Self Remediation Contract which meant it “agreed to carry out and fund any fire related safety works”.
On 6 April 2023 the landlord’s solicitors emailed the resident and stated that the fire safety consultant had only provided a draft report and that input was required from the building’s developer. It stated that while it was the position of the landlord and the solicitor that the developer was liable for all remedial works, if the matter could not be resolved without litigation, the court would determine liability.
On 13 April 2023 the resident emailed the landlord’s solicitor and asked for an update. He emailed the landlord’s solicitor again on 27 April 2023 and 21 May 2023 and asked for an update.
On 31 May 2023 the landlord’s solicitor replied to the resident and said it could not provide any further information until it had received a response from the developer.
The landlord wrote to this Service on 29 September 2023 and stated:
1. It had recently updated its complaints policy to include a new stage 3.
2. It had investigated the resident’s complaint at stage 3.
3. Its stage 3 investigation had found:
  1. The affected cladding was “remedied well in advance” and the landlord had written to all leaseholders to tell them when it was remedied.
  2. Some of the delays were due to changes in legislation. The landlord did not want to give “speculative or misleading information” to residents.
  3. The landlord had tried to manage residents expectations. Given the “changing situation and delays out of [its] control” it had not always been able to respond as frequently as the resident wanted.
  4. The landlord’s timeline had been delayed due to delays in responses from the developer.

Assessment and findings

The landlord’s handling of the resident’s request for information about the removal and replacement of cladding on the building.

The landlord’s initial communication with residents regarding the cladding issues was timely. It wrote to residents within a fortnight of the June 2017 Grenfell disaster and provided reassurance that it was following government guidance. This was reasonable.
In July 2017 the landlord received sample testing results that demonstrated that the cladding on the building did not provide any level of fire retardance and would not meet the requirements for fire safety. The landlord wrote to residents after this and again provided reasonable reassurances that it was proactively managing the issue. It said that it would keep residents informed.
This Service has seen no evidence that the landlord provided residents with updates between July 2017 and May 2019. Nor have we seen evidence that residents requested information during this period.
In May 2019, the resident asked for an update. The landlord responded by stating that it was confident that there was no “present safety issue” and that it would respond fully to the resident when it had been briefed on the matter.
In early June 2019, the landlord provided additional information to the resident. The resident highlighted that the building was above 18 metres and therefore within the scope of the regulations and eligible for a grant to remove the cladding. The landlord confirmed that it was exploring the option of applying for a grant.
Between July 2019 and January 2020 the resident contacted the landlord on a number of occasions requesting an update. While the landlord promised to keep residents informed, it failed to respond to the resident’s requests on several occasions. When the landlord did respond to the resident, its responses were delayed.
When the landlord responded to the resident in January 2020 said it was awaiting further information on the grant and would update residents when it could. Considering its lack of regular communication with residents it was understandable that the resident was not reassured by this undertaking.
In November 2020 the landlord’s contractor wrote to residents outlining plans for remedial works to the building. This Service has seen no evidence that the landlord had provided any updates to the resident or other residents of the building between February 2020 and October 2020. This was unacceptable.
It is accepted that there are complex legal issues in this case regarding liability for the cost of remedial works. It is important to point out that the resident’s relationship is with the landlord, not the developer of the building or the NHBC. It was the landlord’s responsibility to liaise with the developer and to chase the developer for updates, if it did not provide the information requested, in a timely manner.
The landlord has provided some email correspondence to show that its architect had ongoing discussions with the developer and this was fed back to the landlord. This Service has not seen evidence that the landlord communicated this information to the resident prior to March 2023. The resident therefore invested his own time and trouble in contacting the developer himself. This was a failing by the landlord.
The resident asked the landlord on 4 occasions between January 2020 and February 2023 whether it had contacted the developer or NHBC to make a claim regarding liability for the remedial works. The landlord failed to satisfactorily respond to this query until March 2023, this was unacceptable.
In May 2021, the landlord confirmed that the ACM cladding had been removed. This was almost 4 years after the landlord was made aware that the cladding was subject to safety concerns.
This Service considers that the landlord failed to proactively communicate with residents. It was unreasonable that the landlord failed to provide regular updates on an issue that had such an impact on residents. It was unacceptable that the resident had to take the lead in requesting updates every month and that he often did not receive a timely response. Therefore there was maladministration in relation to this complaint.

The landlord’s response to enquiries made by the resident relating to fire safety for the building and to the EWS1 certificate.

Government guidance on fire safety in purpose-built blocks of flats last updated in September 2023 recommends that, for blocks of flats more than 3 storeys high, FRA’s should be reviewed every year and a new assessment carried out every 3 years.
While the landlord has referred to a FRA completed in 2019 this Service has seen no evidence of a FRA completed between June 2017 and February 2023. This was despite the 2017 FRA recommending that a further assessment be carried out a year later due to the quickly changing landscape of national guidance in response to the Grenfell disaster.
The Ombudsman’s guidance for complaints about cladding (available on this Service’s website) sets out that, as the Government’s expectations in relation to cladding and fire safety are only detailed in guidance, there is an element of discretion for a landlord as to how and when it chooses to comply with it.
The Ombudsman’s guidance further sets out that when investigating a complaint relating to the Government’s guidance on 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 shared owners/leaseholders regarding the situation and was this communication appropriate?
3. How has it responded to the individual circumstances of the leaseholder?
These points will be considered when assessing whether the landlord’s actions and response to the complaint were fair in all the circumstances.
It is acknowledged that not all properties require EWS1 certification. It is unclear to this Service whether an EWS1 certificate is required for the resident’s block. The 2017 FRA stated that the building was under 18 metres high and did not adjoin any other buildings. The reference drawings for the building provided by the developer to the resident show that the building was over 18 metres high.
While it is unclear that an EWS1 is required for the block, the landlord has clearly stated on several occasions to residents and this Service that it is in the process of attempting to obtain a certificate. It is therefore reasonable that the resident expects the landlord to do so.
The fact also remains that as mortgage lenders are insisting on certification before agreeing mortgages, residents are stuck.
In May 2021 the landlord advised residents that the ACM cladding had been removed and that an EWS1 form would be obtained when any other required remedial works had been completed. The leaseholders emailed the landlord on 13 occasions between July 2021 and February 2022 asking for further updates. That the landlord failed to proactively update the resident was a serious failing.
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 shared owners/leaseholders regarding the situation and was this communication appropriate?
3. How has it responded to the individual circumstances of the leaseholder?
Overall, the landlord has failed to appropriately communicate its long-term plans for compliance with the resident. The landlord’s poor communication has caused the resident significant distress, and inconvenience. Therefore there was maladministration in respect to the landlord’s response to enquiries made by the resident relating to fire safety for the building and to the EWS1 certificate.

The landlord’s handling of the complaint

The resident made his stage 1 complaint in July 2020. The landlord failed to respond until almost 2 years later in May 2022. This Service considers that this delay was unacceptable.
Between 5 November 2022 and 16 May 2022 this Service wrote to the landlord 6 times and asked it to respond to the resident’s stage 1 complaint. It was only after this Service advised that its next step was to issue a CHFO that the landlord issued a response. A resident should not be forced to contact this Service to prompt a response to a formal complaint.
This Service considers that the stage 1 complaint response provided by the landlord to the resident on 30 May 2022 was wholly inadequate. It consisted of 2 paragraphs and failed to comply with the requirements of the Complaint Handling Code (the Code) in place at the time.
The only information contained in the stage 1 response was that the landlord had removed the cladding from the building in September 2021 and that its contractors had provided regular updates to residents.
The Code outlines what a landlord’s complaint response must contain. It must confirm:
1. the complaint stage
2. the complaint definition
3. the decision on the complaint
4. the reasons for any decisions made
5. the details of any remedy offered to put things right
6. details of any outstanding actions
7. details of how to escalate the matter to stage two if the resident is not satisfied with the answer.
The landlord’s stage 1 complaint failed to provide any of this information. It focussed on the fact that it had removed the cladding from the building but made no mention of the issues that followed and that it had still been unable to obtain a satisfactory EWS1 form.
The landlord’s stage 1 response failed to acknowledge the unacceptable amount of time it had taken the landlord to acknowledge and respond to the complaint. It did not apologise for the impact of the extended timeframe on the resident or the amount of time and effort he had been forced to invest to obtain any formal complaint response. Nor did it state whether the complaint was upheld or not.
In August 2022 the resident asked the landlord to escalate his complaint. The landlord failed to acknowledge this or escalate the complaint to stage 2 of its complaint process until 23 November 2022, 3 months later. This was a further unacceptable delay.
The resident’s stage 2 complaint request very clearly set out why he was dissatisfied with the landlord’s stage 1 response and what he wanted from the process.
The landlord provided its stage 2 complaint response on 16 December 2022. This was 83 working days after the resident requested the escalation and was therefore an undue delay.
As with the landlord’s stage 1 complaint response, this response failed to fulfil any of the requirements of a formal complaint response outlined in the Code. This Service considers that the landlord’s stage 2 complaint response was in fact an update on the status of the issue and not a decision on the issues of complaint.
The landlord’s complaint handling has delayed the resident’s access to an investigation by this Service by almost 2 and a half years. The landlord did not respond to the resident’s complaint until it had been directed to do so 6 times by this Service and until a CHFO was imminent. It has failed to provide responses that meet the basic requirements of a complaint response as outlined by this Service in the Code.
It is clear that the resident went to significant time and trouble to obtain a response from the landlord and that this response then did not address the issues raised. It is understandable therefore that the landlord’s complaints handling caused additional frustration, distress and inconvenience to the resident. The landlord’s complaint handling failures caused the resident to feel that the landlord was ignoring his situation and this undermined his confidence in the landlord. The landlord’s wholly inadequate complaint handling and its impact on the resident means that this Service considers it appropriate to make a finding of severe maladministration for the landlord’s complaint handling.
The Ombudsman has found maladministration following investigation into the landlord’s complaint handling in several cases. In case 201908353 we found maladministration as this Service had to ask the landlord several times to provide a complaint response. In case 202008492 we issued the landlord a CHFO for failing to respond to the resident’s complaint. We found severe maladministration as the landlord delayed unreasonably in progressing the case, failed to address the issues raised by the resident, and failed to provide any acknowledgement or apology. We have therefore decided to issue a wider order under paragraph 54 (f) of the Scheme for the landlord to review its policy or practice in relation to the service failures investigated in this determination, which may give rise to further complaints about the matter. We have set out the scope of the review in the orders below.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was:
1. Maladministration in the landlord’s handling of the resident’s request for information about the removal and replacement of cladding on the building.
2. Maladministration in the landlord’s response to enquiries made by the resident relating to fire safety for the building and to the EWS1 certificate.
3. Severe maladministration in the landlord’s handling of the complaint.

Reasons

The landlord failed to proactively communicate with residents over a period of almost 4 years. That it failed to provide regular updates on an issue that had such an impact on residents and that the resident had to take the lead in requesting updates every month was unacceptable.
The landlord has failed to communicate satisfactorily with the resident. Its poor communication has caused the resident significant distress and inconvenience. It is also of concern that the landlord failed to carry out any FRAs between June 2017 and February 2023.
Unacceptable delays in landlord’s complaint handling have unduly delayed the resident’s access to this Service. It did not respond to the resident’s complaint until directed to do so an unreasonable number of times by this Service and until a CHFO was imminent. It failed to provide responses that meet the basic requirements of a complaint response as outlined by this Service in the Code. The resident was forced to invest significant time and trouble to obtain a response from the landlord the responses did not address the issues raised. This caused additional frustration, distress and inconvenience to the resident.

Orders

Within 4 weeks of the date of this report a senior officer of the landlord to apologise to the resident in person for the failures identified in this report.
Within 4 weeks of the date of this report the landlord to pay the resident compensation of £2,000 comprising:
1. £500 for time and trouble, distress and inconvenience in relation to failings in its response to the resident’s request for information about the removal and replacement of cladding on the building.
2. £500 for time and trouble, distress and inconvenience in relation to its response to enquiries made by the resident relating to fire safety for the building and to the EWS1 certificate
3. £1,000 in relation to its complaint handling failures.
Within 2 weeks of the date of this report the landlord to ensure that its website is updated with the most up-to-date version of its complaint policy along with contact details for this Service.
The landlord is ordered within 4 weeks of the date of this report to provide a clear timetable to the resident concerning:
1. Whether an EWS1 form is required for the building.
2. Provision of form EWS1.
3. Whether the cost of any remedial works will be passed on to leaseholders.
The landlord is ordered within 8 weeks of the date of this report to confirm that it has taken steps to implement Recommendation 7 from the Ombudsman’s Spotlight report on knowledge and information management: ‘Develop organisational key data recording standard requirements that will ensure good records that support the business and demonstrate compliance with national standards’.
In accordance with paragraph 54 (f) of the Housing Ombudsman Scheme, the landlord is ordered to carry out a review its policies and practices in recording and managing complaints. The review must be carried out within 12 weeks of the date of this report, and be conducted by a team independent of the service area responsible for the failings identified by this investigation and should include as a minimum (but is not limited to):
1. The landlord should consider how it will handle complaints; how it will escalate complaints; and how it will ensure it responds to formal complaints in a timely manner, in accordance with its policy and the Complaint Handling Code.
2. The landlord should consider how it will ensure it responds to evidence requests from the Ombudsman in a timely manner.

The outcome of the review and recommended actions must be reported to the landlord’s governing body. The landlord must implement any identified improvements to its operations within 8 weeks of the completion of the review.