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(October 2006)
Mike Biles, the Housing Ombudsman talks about the Independent Housing Ombudsman Service.
I responded to an advertisement in a national newspaper. I had been an academic for 25 years and was the Head of a Law School. I was on the lookout for a new direction and a new challenge. The description of the post of Housing Ombudsman seemed to encompass, and provide a practical outlet for, many of the features of my otherwise eclectic portfolio of skills, specialisms, and experience. For instance, I had a first degree and a doctorate in law. My doctoral thesis was entitled "The arousal and denial of residential tenants' expectations of their non-financial remedies for disrepair, unfitness, and lack of amenity in their homes". I had been called to the bar in 1983 by Middle Temple, was a Member of the Chartered Institute of Arbitrators and an Honorary Member of the Chartered Institute of Housing. I had taught and researched Land Law, Landlord and Tenant Law, and Housing Law extensively and published a number of articles in journals and spoken at numerous conferences on Housing and Land Law matters. I had been an external examiner for the University of Sussex, the University of Central England as well as for professional bodies such as the Royal Institution of Chartered Surveyors, the Chartered Institute of Housing, the Council for Licensed Conveyancers, and the National Association of Estate Agents. I was also a lawyer member of a Leasehold Valuation Tribunal and a member of the committee of management of a Registered Social Landlord.
I am a statutory ombudsman. My jurisdiction, powers, duties, and discretion derive from primary legislation and a Scheme approved under that legislation by the Secretary of State. Although my intervention is triggered by residents and others making a complaint to me, once I have accepted it within my jurisdiction the complaint belongs me as the Ombudsman and the Scheme states that it is up to me to decide how to consider and investigate it.
I depend on complainants to bring their grievances to my attention, I have, at the present time at least, no powers to intervene using my own initiative. When investigating a complaint, I am concerned to establish whether a landlord has been responsible for maladministration. Legislation has, therefore, given the Housing Ombudsman a quasi-judicial role more extensive than that of a conventional consumer complaints handler.
The Scheme goes on to provide that I will also consider an unresolved dispute whether involving the landlord's maladministration or not, and if it might be resolved and, if so, how. This explains why determinations are sometimes stated in terms that are wider than those of the original complaint and also why I sometimes make recommendations to landlords even where there is no finding of maladministration.
Investigations follow an inquisitorial, not adversarial, process. Once I have identified the key issues thrown up by the complaint I seek the relevant evidence from the appropriate sources. I do not make decisions based solely on submissions from the parties or their representatives. Moreover, it is expressly stated in the Scheme that I am not bound by any legal rule of evidence.
I can make orders and recommendations that a court might not be able to make because statute requires me make determinations by reference to what is, in my opinion, fair in all the circumstances of the case. Unlike a court, however, I cannot specifically enforce my orders and recommendations. I rely on landlords complying by virtue of their recognition of my impartiality, moral authority, the integrity of my casework processes, and recognition of good business sense. Moreover, in the case of registered social landlords, I also occasionally rely on the endeavours of the regulator should there have been an issue of non-compliance.
My decisions are final and there is no appeal against them. I may award compensation but I may also recommend that a landlord apologise to the complainant or make changes to or introduce policies or procedures or take or refrain from other action as may be appropriate to the circumstances of the case.
Further key aspects of my role are, by the outcomes of my determinations, to support the parties so that there are good relations between landlords and tenants; to assist landlords to know and apply good management practices, policies, and procedures, and to support improvement of quality of life and amenity for tenants by ensuring that they are receiving the benefits and services to which they are entitled under legislation, policy, and their tenancy agreements.
I am independent. My practices and procedures are strictly impartial and confidential. I am not the "tenants' champion" or "advocate" and, although qualifying landlords are described as 'members' of my Scheme, I am not "in their pocket". My determinations are rigorously objective and based purely on analysis of the evidence gathered from an inquisitorial process.
My Scheme provides that, following the investigation of a complaint, the Housing Act 1996 requires me to determine it by reference to what is, in my opinion, fair in all the circumstances of the case. The Scheme also provides that when investigating a complaint, I am concerned to establish whether the member landlord has been guilty of maladministration which, according to the terms of the Scheme, may include, but not exclusively, circumstances where the member landlord failed to comply with any relevant legal obligations; failed to comply with any relevant codes of practice; behaved unfairly, unreasonably, negligently, or incompetently; failed to apply its own procedures; delayed unreasonably in dealing with the matter; or treated the complainant personally in a heavy-handed, unsympathetic or inappropriate manner.
Additionally, I may also investigate any 'unresolved disputes' between the landlord and the tenant, regardless of whether there may have been any maladministration on the part of the landlord. It is clear, therefore, that my jurisdiction not only embraces instances of maladministration without necessarily having to find that they arise from injustice but also can apply where there is no evidence of maladministration at all.
As to "maladministration" itself, there is no universally accepted definition. The meaning and extent of maladministration is a matter for the application of reasonable discretion. There is no statutory definition of maladministration nor is there a singular definition acknowledged and accepted by all Ombudsmen.
My caseworkers and I work on the general basis that maladministration occurs when the landlord does something the wrong way, does something it should not have done, or fails to do something it should have done. These propositions clearly recognise that maladministration can arise from act as well as omission. We take the view that the concept of "maladministration" is broad, flexible and adaptable. We should be prepared to exercise judgment and discretion guided by a range of principles recognised by other ombudsmen and by our own past and developing experience.
Examples of circumstances giving rise to a finding of maladministration would include; failure to follow best practice, disregard of good practice, failure to comply with statutory or contractual obligations, failure to follow policy or procedure in respect of complaints, repair etc., deliberate failure to follow policy or procedure or complete absence of a policy or procedure, and misinformation or deliberate failure to communicate.
The combined effect of the two provisions in the Scheme that state that I am concerned to establish maladministration and also that even where there may be no maladministration I still have the power to decide how an unresolved complaint or dispute might be resolved, has led us to frame the out-put of our determinations as follows :
This has had the desired effect of making clearer for users of the Scheme and other stakeholders the connection between the terms of the Scheme and the language in which our final determinations are expressed. It has proved easier for tenants and landlords to understand and accept than when we expressed our determinations in terms of:
The breakdown of the incidence of these out-puts according to our statistics for 2004-05 and 2005-06 is as follows :
| 2004-05 | 2005-06 | |
|---|---|---|
| No maladministration | 54.8% | 62% |
| No maladministration – recommendations | 10.4% | 17.5% |
| Maladministration | 32.5% | 19.2% |
| Severe maladministration | 2.30% | 1.2% |
Under Schedule 2 of the Housing Act 1996, social landlords are required to be members of my Scheme. The Schedule also expressly provides that nothing in it shall be construed as restricting membership of an approved scheme to social landlords. The Scheme itself sets out provisions under which landlords other than social landlords may join it as voluntary members. All provisions of the Scheme apply to "the member landlord". In essence, therefore, there is no difference between the two in respect of my statutory responsibilities as such.
All member landlords who are members of my Scheme are expected to comply with determinations following investigation of a complaint. I may require a member landlord to report to me on compliance with a determination in such a way and at such a time as I may specify. The Scheme requires me to report to the Housing Corporation a member landlord regulated by the Corporation which fails to comply with recommendations or orders in a determination. I have a protocol with the Housing Corporation under which the Corporation undertakes always to take action against any social landlord that might not comply with one of my determinations. We do not have to make such a referral more than once or twice each year as the great majority of social landlords comply with recommendations or orders. We also have a protocol with the Audit Commission.
We have no such arrangements in place for landlords who are not social landlords as they are not subject to regulation. Although it is possible for a voluntary member of the Scheme to have its membership ended if it does not comply with the Scheme, this has never been necessary.
Whether a landlord has joined the Scheme on a voluntary or a mandatory basis, I may order it to publish failure to comply with a determination in such a way as I see fit or may myself publish the fact and circumstance of non-compliance, naming the landlord in my annual report or otherwise.
Although some social landlords regard me as "a necessary evil" many others recognise the independence and moral authority of the Ombudsman and also the business case for joining my Scheme. Those factors, however, are always the key influences for other landlords when seeking membership. All landlords who are consumer-focused and committed to continuous improvement of the services they provide recognise that access by their tenants to effective and positive complaint handling, including escalation to the Ombudsman, is good for business.
Both the RSL and the PSR landlords who have joined the Scheme know the value of high reputation, the impact of customer satisfaction on brand loyalty, lower costs, maximised revenue opportunities, and increased "bottom line" profits.
This was borne out by independent research commissioned by the Housing Ombudsman and the Housing Corporation that found :
One of the key messages of the research might be summed up as "unhappy consumers of housing are costly to the providers of housing".
I think that, based on experience from his or her statutory or other function, an ombudsman should be proactive in contributing to debates and discussions on matters such as changes to law, policy, good management practice and good administration. There might be some justification for involvement in setting best practice if the sector in which the ombudsman operated was not overseen by a regulator.
I support the idea of our outcomes adding value and contributing to service improvement in the sectors covered by my jurisdiction. Accordingly, the philosophy of the Housing Ombudsman Service which underpins, in particular, our casework manual, guidance notes, processes, and procedures states that in order to ensure that housing providers comply with, and housing consumers respect, our determinations we provide a complaints-handling and disputes-resolution service which is fair because it is independent, non-partisan, effective, efficient, appropriate, proportionate, and transparent so that, by virtue of those features, it is trusted, valued and respected.
The essence of our philosophy is to provide a quality, impartial service to both consumers and providers of housing. We are not regulators. We are conciliators and problem-solvers. We provide objective solutions. We make a positive contribution to the quality of housing within the Ombudsman's jurisdiction. We achieve this in two ways:
In our work we constantly refer to policy and good practice guidance published by bodies such the Housing Corporation, the National Housing Federation, and the Chartered Institute of Housing and we feed back our out-puts to those bodies and others such as the Audit Commission as well as through other means such as the Ombudsman's annual report, meetings with government departments, through the housing press and other media, conferences, seminars, and workshops. I am comfortable with the fact that we publish occasional good practice guidance and that we contribute to codes of practice developed or revised by the bodies and agencies to which I have referred in accordance with the communication mechanisms that I have described. Production of codes of practice, however, is more the function of trade bodies and regulators than an ombudsman and I do not see it as part of my role directly to create codes of practice. I think that it is important to preserve the unique role of ombudsmen as conciliators and problem-solvers rather than risk undermining their independence and authority by confusing them with regulators.
Experience suggests my powers are wide enough. I only report one or two social landlords to the Housing Corporation each year for non-compliance and have never had to take action against a voluntary member of my Scheme. A dissatisfied complainant is entitled to pursue civil litigation. Nevertheless, I do not know of any instance in which a complainant dissatisfied with one of my determinations has succeeded in a claim to a court. So far as I am aware, courts have tended to take the view that the complainant has had a fair decision from an impartial process based on analysis of the available evidence and, in consequence, there has been no new case to answer. All of this indicates that my powers are wide enough.
Nevertheless, I should be very interested to explore further the advantages or otherwise of the Housing Ombudsman having "own initiative" powers. It is possible that tenants and others within my jurisdiction may be suffering injustice that is not being redressed because it is not being revealed in an investigation by me following a complaint by the individual or group in question. Support for this proposition may be found in recent research that has revealed that many tenants of social landlords still feel aggrieved having exhausted their landlords' complaints procedures yet do not escalate them to me as they are unaware of the existence of my Service.
Examples of the sort of incidents that I might investigate on my own initiative occasionally reach me through reliable sources and include Housing Associations knowingly using "sham" licence agreements; using compensation to "buy off" the consequences of systemic maladministration; and "doctoring" evidence relating to anti-social behaviour at Audit Commission inspections.
I acknowledge, however, that the principal difficulty of the Housing Ombudsman having the power of own initiative is how that would be paid for. Also, if I were to intervene in one case I might be criticised for not intervening in another and might be constantly called on to justify the exercise of my discretion. Moreover, I might be lobbied to intervene in ways that might risk disproportionate expenditure of resources or wrongful interference with my independence.
I cannot point with confidence at any definite cause or causes for this increase. Certainly, over the nine year period in which there has been a statutory Housing Ombudsman there has been a steady increase in demand. This might be caused by a gradual improvement in awareness of the Housing Ombudsman Service and similar citizen and consumer redress schemes, or the incremental growth of the "social rented sector" in consequence of large scale voluntary transfers and housing development programmes, or increased consumer expectation, or, indeed, a combination of all or any of these factors.
The most common cause of complaints has been disrepair. Last year, however, disrepair was beaten into second place and most complaints were about the way complaints themselves had been handled by landlords. Other main causes of complaint are anti-social behaviour, allocation, estate services, home ownership, occupancy rights, rent and service charges, and staff.
At present the dispute resolution mechanisms available to me are adjudications with a hearing, adjudication on the papers, arbitration, investigation, mediation, early neutral assessment, and conciliation. The last three of these are the ones used before an investigation.
Mediation and early neutral, or expert, assessment are valuable when the parties consent and there is a possibility of resolving a dispute without formality and more complex process before it escalates disproportionately in consequence of limited or poor communication between the parties.
All three are quicker, cheaper, more flexible, and more 'user friendly' than a 'traditional' ombudsman investigation and are more likely to sustain and support the relationship continuum between landlords and tenants. In the year to the end of March 2006, we received 5,206 complaints and disputes. The number of new complaints which required investigation was 556. Thus, as in previous years, we resolved by some form of conciliation or mediation rather than investigation the majority of complaints and disputes that were brought to us.
I acknowledge that there are circumstances in which the decisions of some ombudsmen have been, or will be, reinforced by reference to the court. In my opinion, however, too frequent a recourse to such references would dilute the "moral force", "business sense", and conciliatory essence of ombudsmen and militate against an equal "partnership" and clearly defined complementary relationship between ombudsmen and judges. If it preserved and supported parity between ombudsman and judges, it might be appropriate to support the ombudsman being able to make outcomes directly enforceable but only if that was strictly necessary to facilitate the harmonious completion and effective delivery of holistic dispute resolution in housing.
I should like the Scheme to be amended to enable managing agents to join and also to clarify the fact that the term "landlord" includes "licensor". Both of these changes would satisfy significant demand that I have received in recent years from those who would be beneficially affected. I think it would make sense for private sector landlords to be obliged to join my Scheme in the same way as social landlords must. This would help to bring greater harmony between the private rented sector and the "social" sector in respect of quality standards and good practice for service provision and management. In a society that quite properly champions human rights and social justice it is anachronistic that tenants in the private rented sector should have remained for so long the "Cinderella's" in the realm of alternative access to justice. Private sector landlords are excluded from opportunities for improvement of their service delivery and their tenants occupy an administrative justice "wasteland" when compared with their "social" and "council" sector counterparts.
In order to provide a more co-ordinated dispute resolution service to citizens that is appropriate and proportionate there need to be more frequent and open opportunities for communication and mutual understanding between ombudsmen, tribunals, mediators, and judges to ensure that they can complement and support each other in a more coherent, consumer-focused delivery of justice in housing. I believe that the appropriate vehicle for managing this relationship is likely to be the proposed Administrative Justice Council with terms of reference appropriately crafted for the task. This would change my relationship with the Council in the sense that it would require much closer co-operation, communication, and on-going dialogue between the 'justice providers' facilitated by the Council possibly in the form of a protocol or memorandum of understanding.
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