No case to answer
First Published 12 January 2017
Justice for private sector landlords and tenants hinges on an extension of the housing ombudsman scheme, argues Mike Biles
Social tenants have security of tenure, the right of access to an ombudsman and, from April 2017, will all be regulated by the Tenant Services Authority (TSA).
But tenants in the private rented sector are treated differently. Most have no security. Some have access to the housing ombudsman because their landlords or managing agents have voluntarily joined my service but none has that right automatically by statute. There is no regulation comparable with that in the social sector. Many tenants fear retaliatory eviction.
Features of the private rented sector have been described as ‘barbaric’. The Law Commission identified instances in which the rented sector in England and Wales is a mess. These characteristics would be mitigated by tenants having the same right of access to the housing ombudsman as those in the social sector, provided they had the same sort of legal protection from retaliatory eviction as in, for example, Australia and New Zealand.
Regulation establishes, monitors, and improves standards for housing provision, services, and management. Private tenants are no different from those in social housing. They are citizen-consumers entitled to the same standards as their neighbours. Some people say that the TSA should be the regulator for the whole rented sector. Others support self-regulation.
Many private landlords and managing agents are excellent. Some grant assured tenancies because they recognise the importance of positive relationships with their customers which support income flow with uninterrupted payment of rents.
They also value the protection of their capital investments that comes from tenants looking after properties because they are their homes. Creating, developing, and sustaining those relationships is essential to landlords for the success of their businesses.
Those landlords and managing agents who have voluntarily joined my scheme recognise that giving tenants access to independent, external, escalated complaint handling and dispute resolution supports continuing, positive relationships. It demonstrates commitment to customer care. And it makes sound business sense by limiting voids, strengthening revenue flow and reducing management costs.
In essence, those landlords are saying: ‘You are important to my business; I want to provide you with a high quality home and excellent service so that you will stay as long as possible; I want you to pay rent and look after my investment because it is your home; I value you as a customer and your feedback is important to help me improve my business; that is why I have paid to join the housing ombudsman’s service so that if I cannot satisfy your grievance you can take it to him for impartial, objective, independent assessment. If it turns out that there has been a failing on my part, I want to ensure that I put it right.’
These ‘beacon’ landlords support regulation. They are confident that the quality of the homes they provide and their standards of customer service and care are likely to equal or exceed standards in any regulatory framework. They want incompetent and unprofessional landlords driven out of the sector. They and tenants should be at the heart of defining standards.
An ombudsman is essential to any regulatory environment. Access to an ombudsman entitles the consumer to free, independent, impartial, and expert dispute resolution. It also provides an external, objective test of the application, appropriateness, and continued relevance of the regulatory standards.
A key aspect is that my interventions support good relations between landlords and tenants. They help landlords know and apply good management practices, and lead to improvements in the quality of life and amenity of tenants by ensuring that they are receiving the benefits and services to which they are entitled.
The Rugg review recommended licensing for PRS landlords, with ‘a more effective system of redress’. It suggested a ‘housing justice network’ linked to a framework funded by licence fees. The government’s response, in part, to the review proposed a national register of PRS landlords.
The review suggested that tenants should have better access to housing advice and that a single property tribunal might be easier for them to access and could be connected to a specialised housing court.
Tribunals and courts have an important part to play in delivering justice, but they are not the only players. Reporting on administrative redress, the Law Commission defined the ‘four pillars of justice’ as internal complaints systems, ombudsmen, external non-court redress (such as tribunals), and the courts.
Adapting this concept to housing would be practical, affordable, and achievable. Many private landlords have internal complaints systems and some require referral of any escalation to me. In the context of disputes between landlords and tenants, the housing ombudsman, the residential property tribunal service and the courts are aligned to co-operate and complement each other. Collectively, they provide a comprehensive redress service to citizen consumers.
Quality of service
Non-court dispute resolution mechanisms, particularly ombudsmen, can be more effective at highlighting systemic administrative problems and have a greater impact on the quality of service delivery than the courts. Individual complaints can result in a review of the whole system, which has the potential to improve things for many other people. The Law Commission considered this to be one of the key strengths of ombudsmen schemes.
The commission also stated that court-based systems can be expensive and time consuming. Government considers that ‘courts should be the dispute resolution method of last resort’ and is keen to ensure that ‘problems can be solved and potential disputes nipped in the bud long before escalating into formal legal proceedings’.
Ombudsmen are said to provide a more pro-active, accessible, user-friendly alternative to courts -free at the point of use. Once we have identified the key issues we seek the relevant evidence. My process avoids the need for court appearances by both complainants and providers. We do not make decisions based solely on submissions from the parties or their representatives.
Moreover, I am not bound by legal rules of evidence. Consequently, there is less formality and stress than in an adversarial trial. Proceedings take place in private.
Some complainants may not be able to cope with the adversarial nature of court proceedings. Recognised aspects of the vulnerability of claimants include age, state of health, and level of education. Also, where claimants do not know the full facts and cannot obtain them through court proceedings, my process may be the more appropriate method for obtaining redress.
My caseworkers’ task is to find the information and we have more scope than courts, as the Law Commission put it, ‘to ferret out the facts’. If the complainant is in an ongoing relationship with the provider, as is certainly the case between landlords and tenants, the less adversarial and more conciliatory approach of my process is invariably more appropriate than going to court.
Court hearings are generally held in public but I never publicly disclose complainants’ identities and rarely disclose those of providers. I do not make decisions in terms of ‘winners’ and ‘losers’ and, although I sometimes make an order or recommendation for compensation, I never award costs.
Complaints can be motivated by a desire to obtain recognition of the fact that the complainant has been mistreated. Many individuals who have been poorly treated simply want an investigation into the mishandling of their case and, where appropriate, an explanation and an apology. For many, the issue is an opportunity to express dissatisfaction or to voice a grievance, without actually requesting a specific outcome. Some people are actually keen to ensure that what happened to them does not happen to others.
Sometimes financial compensation is an important factor, but often people seek reassurance that their case has been given consideration and that the law has been applied correctly and fairly. A court’s consideration does not permit it to undertake a wide-ranging review of administrative or professional practices. So, without the housing ombudsman, no regulatory framework or housing justice network could be fully effective.
Dr Mike Biles is housing ombudsman, a barrister and visiting professor of law at Southampton Business School.