EHJ June 2004, pages 180-182
Transfer of social housing from local authorities to registered social landlords has seen a marked rise in tenant complaints to environmental health services. Peter Towler explains how the Housing Ombudsman Service can assist EHPs

Disputes between tenants and landlords can cause real problems and, in the worst cases, may lead to court action. Increasingly however, there has been a drive to find alternatives to legal action.

The Independent Housing Ombudsman Scheme (IHOS), part of the overall Housing Ombudsman Service (HOS), tries to resolve disputes before they reach this stage. As a result, it is becoming increasingly relevant to environmental health practitioners working in the housing sector.

This is largely due to the diminishing role of local authorities in providing and managing rented accommodation over the last 20 years. These changes have seen these responsibilities passed to registered social landlords (RSLs). Since 1988, local authorities have transferred 600,000 dwellings.

However, this has not just been a bricks and mortar transfer - almost 200 local authorities have also contracted out their executive duties for homelessness and housing allocations. As a result, the size, role, importance and influence of RSLs have expanded dramatically while the involvement of many local authorities, particularly in developing and offering social housing, has waned.

The impact of these changes is increasingly being felt in environmental health services where there has been a rise in the number of complaints from tenants renting from RSLs. While the majority concern disrepair, there have also been complaints about noise and antisocial behaviour. Where previously many EHPs did not normally deal with disrepair complaints from local authority tenants, they now have to take formal or informal action against RSLs. Not surprisingly, this has put pressure on workloads, particularly in those areas where there is a substantial RSL holding.

Local authorities already work closely with RSLs to achieve common goals (eg the provision of housing to meet local needs, area regeneration and employment initiatives, tackling antisocial behaviour etc). However, they also have a regulatory role, which means they may have to use enforcement powers under housing and environmental protection legislation if RSLs are unresponsive.

This is where the IHOS comes in. Run by the HOS, this is an independent service that investigates complaints against member landlords - providing an essential part of an approach known as alternative dispute resolution (ADR).

Increasing pressure on lawyers, to restrict litigation in civil disputes to cases where it is really unavoidable, has resulted in the use of ADR. The purpose of these less legalistic approaches, such as complaints procedures, adjudication and ombudsman services etc, is to minimise court involvement.

The momentum for this change came from Lord Woolf's report Access to Justice in 1996, which brought changes in the civil procedure rules, giving the court powers to encourage parties to consider ADR and penalise them if they did not. These developments underline an expectation that ADR should still be used to reduce issues in dispute, even if the whole dispute cannot be resolved without resorting to court.

The Pre-action Protocol for Housing Disrepair Cases1, which came into force on 8 December 2003, has built upon this. By placing requirements on landlords and tenants, such as the early notification of the tenant's claim to the landlord and the exchange of full information, the protocol aims to avoid unnecessary litigation and promote the speedy execution of repairs and provision of any compensation. It also seeks to keep costs down.

Lord Woolf's report recognised that ombudsman schemes offered many members of the public the most satisfactory way of achieving a just resolution of their complaints. This conclusion was reflected in the Housing Act 1996, which required all RSLs in England to join a government-approved ombudsman scheme. The IHOS has been operational since 1 April 1997, following approval from the Secretary of State. There are separate arrangements for RSLs in the other parts of the UK.

The IHOS currently covers nearly 2.2 million dwellings and although unregis-tered housing associations and private landlords may also join, this accounts for only about 2 per cent of the dwellings in the scheme. The IHOS is financed through a levy on each tenancy in its jurisdiction and is collected through the member landlords, who cannot withhold it.

The scheme's purpose is to investigate complaints by tenants and others, for example, leaseholders and housing applicants etc, whose landlords are members. The HOS received 3,534 complaints in 2002/3, of which 28 per cent concerned disrepair and 18 per cent related to nuisance and harassment. Other issues raised concerned allocations, rent/service charges, occupancy rights and complaints handling by the landlord. Initially, the HOS assesses whether the complaint comes within the scheme's jurisdiction. Normally, the landlord's own internal complaints procedures must have been exhausted before the HOS can accept a case. Complaints will also not be considered if they concern matters where legal proceedings have been issued or have already taken place. In 2002/3, 84 per cent of the complaints received were within jurisdiction. At evaluation stage, the possibility that mediation between the parties could help to resolve the dispute will also be considered. If accepted, this would be provided free of charge to both the landlord and complainant.

The next step involves a thorough investigation to establish whether the member landlord has been responsible for maladministration. The HOS's investigators and managers have a wide range of expertise, covering housing management and advice, housing law, tenancy relations and environ-mental health. If maladministration is found, the HOS may order or recommend the landlord to pay compensation, execute works, introduce policies/procedures, train its staff etc. During 2002/3, 41 per cent of the cases investigated resulted in findings of maladministration. However, even if there is no evidence of the landlord doing wrong, the HOS can still consider offering help to resolve the dispute.

Although the HOS's investigations are normally based on a detailed assessment of relevant paperwork, the parties may also be interviewed if this is considered necessary. A preliminary determination is then issued. This gives both parties an opportunity to provide new information or comment on the investigation findings. Any responses are considered and a final determination is made.

RSLs have a responsibility, under the Housing Corporation's Regulatory Code2, to ensure that the HOS's recommendations are actioned. As a result, there is a very high rate of compliance with the HOS's determinations among RSLs. In the unlikely event that there are problems, the HOS may refer the case to the Housing Corporation for its intervention.

Essentially, the HOS's philosophy is to provide a quality and impartial service to both the consumers and providers of housing. The HOS is not a regulator of RSLs and performs a very different function from those who are, namely the Housing Corporation and the Audit Commission. Instead, the HOS tries to solve the problems identified by complaints and provide objective solutions. Rather than just responding to the complaint itself, the HOS tries hard to resolve the dispute. Where appropriate, it tries to identify actions that the landlord can take to minimise the likelihood that similar situations will recur. In formulating its requirements and recommendations, the HOS's staff draws on its own experience and knowledge of current good practice in the housing field.

While the HOS does not have the resources to deal with all the complaints EHPs receive from tenants and leaseholders of RSLs and other member landlords, there may be categories of complaint where EHPs should consider recommending the tenant or leaseholder to contact the HOS, if they have already exhausted their landlord's complaint procedure. The following are some examples:

• the tenant raises issues (eg allocations, right to buy, service charges etc) where the EHP is not in a position to take action, but where he/she considers the person may have a genuine grievance
• the complaint may highlight policy or procedural shortcomings that could best be dealt with via the HOS, eg policies in connection with achieving the decent homes standard
• the tenant/leaseholder has appar-ently received a poor service but the environmental health legal powers will not adequately deal with this situation.

At the moment, only those tenants living in RSL or council accommodation can rely on some degree of protection from ombudsman schemes. The Local Government Ombudsman obviously covers local authority tenants. Although the HOS has encouraged private landlords to voluntarily join the IHOS, it has had limited success. However, there are signs that protection will be extended to private sector tenants in the future. After the HOS had given evidence to the select committee on the draft Housing Bill last year, the committee's report recommended an extension of housing ombudsman and tenancy deposit schemes into the private rented sector. The CIEH also supported these proposals in its response to the consultation.

The HOS has recently run a pilot tenancy deposit scheme on behalf of the ODPM. Its experience shows that there are strong arguments for introducing a mandatory scheme that will protect the deposits made by all private tenants. Housing minister Keith Hill's announcement on 19 May that new provisions in the current Housing Bill will require that tenancy deposits be protected in the future is therefore welcomed.

Some local authorities have agreed protocols with RSLs covering the standards of service expected from them. In addition, the HOS provides further protection - albeit after events have occurred - to over two million tenants covered by the scheme. By encouraging tenants to use IHOS for resolving disputes, EHPs will be able to build on approaches already being taken by environmental health services.

References

1. This protocol covers claims brought under Section 11 of the Landlord and Tenant Act 1985, Section 4 Defective Premises Act 1972, common law nuisance and negligence and those brought under the express terms of a tenancy agreement or lease. The protocol does not include claims brought under Section 82 of the Environmental Protection Act 1990.
2. The way forward - our approach to regulation. Housing Corporation, 2002, available at: www.housingcorp.gov.uk

The HOS is a key part of the ADR framework and is available to all RSL tenants in England and other member landlords. The HOS provides a free, impartial and private service to complainants, which offers proportionate redress and the prospect of improved services in the future, particularly where maladministration is found. For more information and a complaints form, visit: www.ihos.org.uk

Peter Towler is an investigator at the Housing Ombudsman Service