Strengthening Consumer Redress in the Housing Market. Consultation by Ministry of Housing, Communities and Local Government

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1 Response: Strengthening Consumer Redress in the Housing Market Consultation by Ministry of Housing, Communities and Local Government 26 April 2018 Summary of key points: The Federation supports the creation of a Single Housing Ombudsman covering all residential landlords whether social or private. The Single Housing Ombudsman should have a broad remit extending also to leaseholds, the activities of lettings agents and managing agents and to allied areas such as park homes residents. However, it should not extend into areas that are remote from a landlordtenant relationship or anything akin to it. Participation in the scheme should be mandatory. The scheme should be funded on a subscription basis, and its income and expenditure should be monitored to ensure that its sources of fee income align, in broad terms, with its areas of work. John Bryant Policy Leader john.bryant@housing.org.uk National Housing Federation Lion Court 25 Procter Street London, WC1V 6NY Tel Fax info@housing.org.uk Registered Office: Lion Court, 25 Procter Street, London WC1V 6NY National Housing Federation Limited, trading as National Housing Federation A company with limited liability Registered in England No

2 1. Introduction This is the formal response of the National Housing Federation to the consultation by the Ministry of Housing, Communities and Local Government (MHCLG) regarding consumer redress in housing. The National Housing Federation is the voice of housing associations in England and our members are united by a common purpose to ensure everyone has access to a quality home that they can afford. It is central to this purpose that associations strive to meet the needs and expectations of their residents and achieve the highest possible levels of resident satisfaction. In this context, it is essential that associations respond to feedback from residents and speedily resolve any complaints that arise, with recourse if necessary by an independent mechanism for considering complaints and recommending redress. 2. Summary The Federation supports the principle of a single housing ombudsman covering all types of residential tenancies whether social or private. The Single Housing Ombudsman should have a broad remit extending to all types of housing governed by a relationship between landlord and tenant. In this context, the term tenant should be understood in a broad sense so that it includes leaseholders. This will remove the existing anomaly whereby leaseholders have access to an ombudsman if the freeholder is a local authority or housing association but not otherwise. It will be important that the Single Housing Ombudsman encompasses the whole private rented sector. We outline administrative measures, similar to those successfully used to ensure compliance with section 48 of the Landlord and Tenant Act 1990, that will ensure that private landlords subscribe to the scheme. The Single Housing Ombudsman should be financed by fees subscribed by landlords using a formula based on stock holding. The work of the Single Housing Ombudsman should be monitored to ensure that it is broadly reflective of its sources of fee income, and the fees of the various categories of landlord should be adjusted up or down as necessary to ensure that no sector subsidises another. The remit of the Single Housing Ombudsman should not extend to matters that are remote from any sort of landlord-tenant relationship or anything akin to such a relationship. We think the scheme will lose focus if it is extended to matters such as buyers dissatisfaction with new build homes (although we recognise that this is an important issue that may well require a Government response). The focus of the Single Housing Ombudsman must be squarely on casework that is, on speedily and effectively addressing the substance of individual disputes and, where appropriate, on recommending redress. Other aspects of its work, such as providing feedback or advice to landlords, are helpful and valuable but should not be allowed to distract from the paramount importance of casework. The creation of a broadly-based Single Housing Ombudsman is also helpful in underlining the point that housing associations are neither part of the public sector nor some kind of adjunct to it. The extension of an ombudsman scheme to private sector landlords shows that associations are included in their capacity as landlords, not because of any relationship to the state. Page 2

3 3. Main text The principle of a Single Housing Ombudsman The Federation agrees with the remarks of the Secretary of State, Sajid Javid, in his foreword to the consultation paper, to the effect that redress arrangements in the housing sector are too complicated and are difficult for tenants and housing applicants to understand. We agree that it is desirable to simplify the process and reduce the number of redress schemes. We are, accordingly, strongly sympathetic to the principle of a Single Housing Ombudsman covering all types of residential tenancies, including local authorities, housing associations and the private rented sector. This will generate a much less cluttered landscape and will support more effective and accessible redress from the consumer point of view, which is after all the object of the exercise. Although the issue of consumer redress is the focus of this response, we wish first of all to address an issue that we know is of great concern to MHCLG (as well as to the Federation). This is the importance of maintaining the non-public status of housing associations for the purposes of Government accounts. The recent classification of associations as public for this purpose, which lasted from 2015 to 2017, demonstrated that the threat of reclassification is very real and we know that the Government is very anxious to do what it can to mitigate the risk. In this context, the creation of a Single Housing Ombudsman, covering not only housing associations and local authorities but commercial residential landlords as well, would be extremely helpful. It would constitute a marked improvement on the current position because, by including associations alongside both the private rented and local authority sectors, instead of just with the local authority sector as at present, it clearly demonstrates that associations are being treated very much in their capacity as landlords rather than as part of the public sector or as some kind of adjunct to it. The Single Housing Ombudsman is also, again from the 'public body' point of view, far preferable to including housing associations in the remit of a general ombudsman for the public sector overall, and we are pleased that this idea is now off the table. The remit of the Single Housing Ombudsman However, even if the proposal for the Single Housing Ombudsman is adopted, there will remain questions about its exact scope. There is a tension here between, on the one hand, the Government s understandable wish to limit the number of redress schemes, and on the other hand, the danger that if a scheme s remit is too broad, its workload and the breadth of knowledge and skills that it will require will become unmanageable. There is no easy or straightforward resolution of this dilemma and the question will necessarily be one for the Government. It may be helpful, however, to set out some of the issues involved. Our starting point would be that the remit of the Single Housing Ombudsman would cover residential tenancies let on a periodic basis or a short fixed term by any landlord whether it be a local authority, a housing association, or a private landlord. We suggest that the first question, beyond this basic remit, is whether the Single Housing Ombudsman s remit should also extend to long leases of residential property. Our firm recommendation is that it should. One reason for this recommendation is purely practical. Currently, where the freehold is owned by a local authority or housing association, the leaseholder enjoys access to the Housing Ombudsman Service even if he or she simply bought the lease on the open market, whereas there is no equivalent access for leaseholders whose freehold is owned by a private company or individual. Our proposal would put all residential leaseholders on the same footing regardless of the nature of the freeholder. Page 3

4 A further reason is the extent of the common ground between issues affecting leaseholders and those affecting tenants. Notwithstanding the important differences between tenancies and leases, in both cases the underlying relationship is essentially that between landlord and tenant and any dispute is likely to be, in essence, between a landlord body and someone seeking redress in respect of his or her home. Not only does this imply a strong element of practical overlap between cases involving leaseholders and tenants, it also means that the Single Housing Ombudsman will tend to find itself dealing with many of the same landlords, since it is likely an organisation owning a substantial amount of residential property which will have both leased and tenanted homes within its portfolio. Extending the scheme to private landlords will have further advantages in terms of simplifying the current arrangements. Notably, it will mean that Single Housing Ombudsman can also deal with letting and managing agents, who are employed by and responsible to the landlord and whose function, like that of the landlord, rests ultimately on the landlord-tenant relationship. Indeed, it would be clumsy and invidious to have separate schemes depending whether or not a private landlord employs an agent for lettings or management, whereas including agents within the Single Housing Ombudsman scheme will help to underscore the important point that agents are appointed by and accountable to the landlord, who is responsible for their actions on the landlord s behalf. We also agree that it would be reasonable for the remit of the Single Housing Ombudsman to extend to residents in so-called park homes dwellings: that is, static caravans, trailers or similar structures permanently moored on sites in private estates. For park homes residents, their relationship with the site owner corresponds closely to that between landlord and tenant in more conventional housing. In some cases, contracts for the sale of freehold property include conditions about the way the property will be used that, in effect, create an interest held by the seller that can, in its turn, be traded. In this situation, the homeowner s relationship with the holder of this interest may have much in common with that between leaseholder and freeholder. In response to a separate consultation, we have advised the Government to regulate this relationship to prevent abuse, and bring it within the jurisdiction of the First-Tier Tribunal to cover this type of arrangement. We think it would also be appropriate to include these arrangements in the remit of the Single Housing Ombudsman since the relationship they create is in practice very similar to that between leaseholder and freeholder. The consultation paper also refers to increasing dissatisfaction on the part of buyers of new build homes. We agree that redress arrangements for purchasers of new property should be simplified and improved, but we have reservations about extending the brief of the Single Housing Ombudsman into this area. This is not only because any disputes are likely to involve significantly different issues but also, more importantly, because the relationship between purchaser and developer is of a fundamentally different character to that between tenant (or leaseholder) and landlord. For similar reasons, we suggest that the work of estate agents should also lie outside the remit of the Single Housing Ombudsman. Operational issues A key concern is that the focus of the Single Housing Ombudsman should be squarely on casework that is, on addressing the substance of individual disputes and, where appropriate, on recommending redress. This may seem an obvious point but past experience demonstrates the risk that an ombudsman may allow the focus to shift onto issues of policy arising from the work. In saying this, we do not mean to argue that the SHO should undertake absolutely nothing but casework. On the contrary, we agree that it is extremely helpful to relay experience back to the sector and to advise landlords about how to deal with complaints. But any ombudsman service must put the casework absolutely at the heart of its service, and in particular must ensure that it is able to deal with cases not only effectively but also quickly. If a substantial backlog of cases is allowed to build up, complainants Page 4

5 will become frustrated and lose confidence in the scheme (as will landlords) and its value will be much diminished. Although we strongly support the inclusion of the private rented sector in the remit of the proposed single ombudsman, we recognise that this will give rise to operational issues that will need to be addressed if the scheme is to succeed. In the first place, the service will have to be tailored to meet the difference in expectations between social housing providers and private landlords, relating to such key matters as levels of rent, security of tenure, and compliance with the Regulator of Social Housing s Regulatory Framework. But these differences, although important, should not obscure the areas in common. In particular, we anticipate that a very high proportion of the Ombudsman s caseload will relate in some way to repairs and the overall condition of property, where of course the repairing duty under section 11 of the Landlord and Tenant Act 1985 applies equally to all residential landlords whether public or private. Much of the Ombudsman s work will thus be applicable to residential landlords across the board. Although, of course, rulings will have to be tailored according to the type of landlord where this is relevant, the success of the current Housing Ombudsman in dealing with leasehold cases alongside tenancies demonstrates that these differences can be readily managed. A more serious operational issue is likely to be the need to engage the entire private rented sector with the scheme. This is not a problem with registered providers of social housing, all of which appear on a register maintained by the Regulator of Social Housing. There is no equivalent to this for private landlords. It will be important, therefore, for the Government to launch a publicity campaign advising private landlords of their new obligations in relation to the Single Housing Ombudsman. It is usual to reinforce such an obligation with the threat of conviction and a fine, but the experience of Scotland in attempting to enforce a register of private landlords suggests that criminal sanctions are less effective than might be expected. We suggest, therefore, that the most effective enforcement mechanism will be to require landlords to give written details of their membership of the ombudsman scheme at the outset of a tenancy, preferably as part of the tenancy agreement. Legislation should provide that unless the landlord can show that this notification has been supplied, arrears of rent and service charges cannot be pursued through the courts. This is exactly the mechanism that has achieved virtually 100% success in enforcing the obligation on landlords to provide a UK address as required by section 48 of the Landlord and Tenant Act A key concern for the Federation is that the fee income of the Single Housing Ombudsman is broadly reflective of the workload. It would clearly be inequitable if, for instance, the Single Housing Ombudsman derived the majority of its income from social landlords but spent most of its time dealing with cases arising from the private sector. This would amount, in effect, to a subsidy of the private sector and would be unfair on the social sector (and, just to be clear, the reverse situation, if it arose, would be equally unfair on private landlords). We do not think it necessary that the Ombudsman s income and expenditure should be meticulously tracked to ensure exact correspondence for the various categories of landlord, but we do propose that income and expenditure should be kept under review to give assurance that in broad terms (not down to the last penny) the sources of the subscription income reflects the workload. Page 5

6 4. Federation's views We have set out our overall response to the proposals in the previous section. However, our response to the specific questions is as follows. Q1: Are you responding: As a private individual? On behalf of an organisation? On behalf of the National Housing Federation. Q2: If you are an individual, in which capacity are you completing these questions? Not applicable Q3: If you are an organisation, which of the following best describes you? We are the trade body for housing associations in England. Q4: Have you ever made a complaint relating to the renting, selling or purchasing of your property, or relating to the management or maintenance of a property in which you are a renter or leaseholder? Not applicable Q5: If you have complained about the renting, management, selling or purchasing of your property, who did you complain to? Not applicable Q6: Have you used any of the following housing redress schemes (as a consumer or organisation) in the past five years? The Housing Ombudsman; The Property Ombudsman; Ombudsman Services: Property; The Property Redress Scheme; The Consumer Code (Independent Dispute Resolution Service); Local Government and Social Care Ombudsman (only regarding its housing-related functions) Not strictly applicable, although we maintain good relations and regular contact with the Housing Ombudsman. Q7: If you answered Q6, how would you rate the service that you received out of 10? (With 1 being very poor and 10 being exceptional) Not applicable Q8: What do you consider to be the main problem with redress in the housing market, if any? (tick up to three): There is no problem It is not clear how to raise a complaint It is not clear who to raise a complaint with There are gaps in redress Schemes are inconsistent in the way that they handle complaints It takes too long to get a decision or a complaint resolved Page 6

7 It is expensive Complaints are not handled fairly Not everyone has the same access to redress When decisions are made they are not enforced Worried about the consequences of complaining Overlap between schemes Other [please explain] Our main concerns would be: the multiplicity of schemes, which is confusing for residents the fact that the boundaries between schemes are often defined in very technical terms and do not necessarily reflect differences of substance in the housing service provided delays in dealing with claims because of a backlog. Q9: Which solutions below do you think would best improve redress in the housing sector? (please pick up to three) Better awareness from consumers of how to raise complaints Improvements to the working of existing redress schemes e.g. more timely complaint handling Better enforcement of redress scheme decisions Schemes all operating to the same criteria/standards A code of practice for all housing providers (e.g. landlords, agents, housing associations, developers) on complaints handling Streamlined redress provision in housing (see question 30) Other [please explain] We recommend: fewer schemes, with more logical boundaries between them speedier processing of cases. Q10: Could more be done to improve in-house complaint handling for housing consumers? In our sector much good work has been done to make complaints processes more effective and accessible by removing bureaucratic obstacles and delays. However, we accept there is always scope for further improvement. Feedback and advice from the Housing Ombudsman have been particularly valuable here. Q11: Are there common practices that housing consumers and businesses should be able to expect from a redress scheme, or do different sectors in housing require different practices? Yes there should be common practices for consumers No different sectors require different practices It is inevitable that there will be differences to reflect the various forms of housing, but these differences should be kept to a minimum as part of the general process of cutting unnecessary bureaucracy and keeping schemes as simple as possible. Q12: If you believe there should be common practices that consumers should be able to expect from a housing redress scheme, what should they include? (pick as many as relevant) Page 7

8 Rules relating to the types of issues consumers can complain about Rules relating to the timeframe in which consumers can complain to a provider Policies to support awareness raising Timeliness of complaint handling Cost to consumers Compensation levels Codes of practice specific to the sector Cost to members/payment structures Transparency of decisions All apply Other [please explain] This list demonstrates that it will never be possible to have identical rules for redress schemes that may be functioning in very different areas, but we argue that schemes generally should strive to be as quick, straightforward and accessible as possible and that their various rules and requirements (of which there will inevitably be some) must be clearly justified in terms of ensuring the fairness and effectiveness of the scheme. Q13: Do you think that a redress scheme should publish decisions and the number of complaints relating to different providers? Please explain why. We expect that schemes would do this as part of their more general commitment to transparency and accountability. Q14: What is a reasonable time frame for a redress scheme to deal with a complaint? Less than two weeks More than two weeks but less than a month More than a month but less than six weeks More than six weeks but less than two months More than two months but less than three months 3-6 months 7-12 months More than 12 months It depends on the complexity of the case Inevitably the complexity of the case will be a factor and a small number of particularly difficult cases might require a substantial time, but we expect that the great majority of cases should be dealt with in a matter of weeks rather than months (measured from the time that an eligible case is first referred to the ombudsman). Q15: How should a redress scheme support consumers to access its scheme? A scheme should be as accessible as possible and should not impose unnecessary requirements such as (for instance) that a complaint must be in writing or that it must be made through an online portal. We do think, however, that it is reasonable to stipulate that a complainant must first have taken the matter through the landlord s own complaints procedure, provided that it has one and that it is not unduly protracted or otherwise defective. Q16: What kind of sanctions should a redress scheme have access to? Page 8

9 Financial award up to 25,000 Financial award greater than 25,000 Expulsion from scheme Power to make decisions binding Referral to enforcement agent / regulators A range of options depending on the type and size of provider Other Financial awards should reflect the loss or damage to the complainant but we do not favour a cap. We suggest that an important form of redress, not mentioned here but often very important to complainants, is that of requiring an apology and a clear explanation of what went wrong. We agree that referral to a regulator or enforcement agent will be appropriate where the landlord is found to be seriously at fault, but we do not agree that decisions should be binding because this will inevitably mean that the ombudsman begins to assume something of the character of a court of law. When a landlord declines to comply with an ombudsman ruling, we think there should be a power to force the landlord to make a clear statement of its refusal and to publicize that appropriately (for instance by placing it prominently on its website or by taking out a press advertisement). We also think the ombudsman should be clear and robust in reporting occasions where it finds that complaints are unfounded or that it was the complainant that was principally at fault (although we agree that individual complainants should not be identified). Q17: Have you encountered any gaps between different issues, ombudsmen and redress schemes in terms of their areas of responsibility? As mentioned above (see questions 11 and 12), it is inevitable that schemes will vary because of the different sectors and services with which they deal, but a general commitment to simplicity and clarity will tend to reduce the scope for these differences and it is important that all features of a scheme are clearly justified in terms of its accessibility and effectiveness. Q18: Should purchasers of new build homes have access to an ombudsman scheme? We can see the merits of a suitable scheme but we have reservations about whether this area is appropriate for the proposed Single Housing Ombudsman because it is relatively remote from the relationship between landlords and tenants/leaseholders with which the Single Housing Ombudsman would otherwise be mainly concerned. Q19: Is there an existing ombudsman scheme that is best placed to deliver this? If so which? There are existing redress mechanisms but we are not in a position to say which of these, if any, may be the most appropriate. Levels of consumer dissatisfaction suggest that a new approach may be necessary; if so, it should aim to simplify greatly the current multiplicity of arrangements. Q20: Should this body be statutory? At this stage, we have no view. Q21: Aside from the issues discussed in section three of this document, are there other things we should be considering to ensure that complaints are dealt with swiftly and effectively by homebuilders? Page 9

10 At this stage, we have no view. Q22: Should the requirement for private landlords to belong to a redress scheme apply to all private landlords? Yes. The obligation should apply to private landlords in general, whether or not they use a managing agent. Indeed, agents work for the landlord (not for the tenant) so their function is also underpinned by the landlord-tenant relationship and we therefore envisage that the role of managing agents will be folded within the Single Housing Ombudsman scheme. Q23: Who is best placed to provide a redress scheme for private landlords? The existing redress schemes in the private rented sector? The tenancy deposit schemes? A new ombudsman, such as a single housing ombudsman? Other [please specify]? We strongly favour a Single Housing Ombudsman, whose remit should also extend to work done on behalf of landlords by lettings agents and managing agents. Q24: How should redress scheme membership for private landlords be costed? A flat rate (and how much do you think it should cost)? A tiered system according to the number of properties a landlord lets? A pay per complaint system? Our preference would be that private landlords should pay for the Single Housing Ombudsman in the same way as housing associations, namely by a subscription based on stock numbers. We have set out in our main response how this might be enforced. While the basic payment mechanism should be the same for all types of landlord, the cost per unit (or per tier of units) might vary according to the type of landlord to ensure that the income of the Single Housing Ombudsman broadly reflects its workload. We do not favour a per complaint system because the likely charge, if made on this basis, would have to be substantial and might well be disproportionate to the landlord s degree of culpability. Indeed, even if the Single Housing Ombudsman concluded that the complaint was entirely unwarranted and the landlord was in no way at fault, the payment would still have to be extracted and this seems contrary to natural justice. Q25: How should the requirement to be a member of a redress scheme be enforced and by whom? And are there any other markets we can learn from in order to ensure compliance by a large number of small scale providers? Please see our response to question 16 above. Q26: What should the penalty for initial non-compliance be? If a financial penalty, what would be an appropriate level of fine? Financial penalty? Criminal offence? Banning order? Loss of right to evict tenants under Section 21? Civil sanction such as improvement notices or enforcement notices? Other [Please explain]? As explained in response to question 16, we think that criminal sanctions will change the character of the scheme and are not appropriate. It is more important to create a culture of compliance, as has been successfully achieved in other sectors. We agree that landlords should be required to publicise their non-compliance, and we can see a case for denying them access to no-fault possession under section 21 (although other forms of possession should remain available). Page 10

11 Q27: How can the Government best ensure that landlords are aware of their requirement to belong to a redress scheme? The Government should undertake a publicity campaign to ensure that landlords (and their tenants) are aware of this requirement. In addition, landlords should be required to notify tenants, in writing, of their membership of the redress scheme, failing which it should not be possible to take legal action pursuant to any arrears of rent or service charges. Past experience suggests that this is a highly effective sanction, much more so than a criminal penalty. Q28: Are there any other voluntary or medium term measures that could be implemented to improve redress for tenants in the private rented sector ahead of any legislative changes? None that we can advance with confidence. We agree that legislation is required. Q29: Do you think that freeholders of leasehold properties should all be required to sign up to a redress scheme? If the property is residential in character, yes. Q30: Should we streamline redress provision in housing, and if so, what would be the most effective model? Please explain below what you see as the benefits and challenges of the options. Yes One single ombudsman scheme covering housing issues Yes One ombudsman portal for housing related complaints Yes One ombudsman for private housing and another for social housing Yes One ombudsman for each sector of the housing market (e.g. one for home buying, one for new build homes, one for private rented sector, one for the social sector, one for leaseholders) No Other [please list] Please provide details and explanation We favour a Single Housing Ombudsman covering all residential landlords, public or private, and applying to both tenanted and leasehold property. It should also cover agents working on behalf of landlords to let or manage property. What unites all these sectors is that they are based on a relationship between landlord and tenant (understanding the word tenant in its broad sense as including leaseholders). We fear that such a scheme will lose its focus if it is extended to other housing issues, such as defects in new homes built for sale. Q31: If you ticked Yes to one ombudsman or one portal above then which areas of redress should be incorporated? [Please tick any areas you believe should be included and explain any reasons for inclusion or exclusion] Social housing tenants Private rented sector Leaseholders with a private sector freeholder Leaseholders with a social housing provider as freeholder Purchasers who have bought a new build home Purchasers and sellers of existing homes Park home owners Persons approaching their local authority for homelessness advice Page 11

12 Persons applying to a local authority for social housing Persons applying for a tenancy with a housing association Other [Please identify] As set out above, we think the Single Housing Ombudsman should address areas where the relationship is broadly that between landlord and tenant or something akin to it. Thus, we argue that it should not extend to the normal process of sale and purchase in the general housing market. Nor should it cover persons seeking homelessness advice from a local housing authority since this is a local authority function, not a landlord function (note that it is retained by local authorities that have disposed of their housing stock). Any complaints would therefore be the province of the Local Government Ombudsman). All the remaining categories should be included, and in addition the activities of lettings and management agents where they are acting on behalf of a landlord of residential property, and freehold home owners where their use of the property is bound by conditions that create a relationship with the original vendor (or with the purchaser of that interest) that is akin to that between leaseholder and freeholder. 5. Conclusion The creation of a Single Housing Ombudsman would be an important positive step, greatly simplifying the existing confusing array of redress schemes and helping tenants and leaseholders of residential property to obtain speedy and effective redress. To maximise the benefit of the scheme it should be as broadly based as possible, extending to landlords of residential property of all kinds and well as to letting and managing agents. However, certain areas mentioned in the consultation paper, notably those concerned with open-market property sales, are so far removed from any kind of landlordtenant relationship that their inclusion in the Single Housing Ombudsman s remit would risk a loss of focus. We have already met twice with civil servants working on this area at MHCLG and we look forward to working further with the Government to ensure that tenants and leaseholders, whatever the status of their landlord, have effective means of speedy redress when things go wrong. John Bryant Policy Leader National Housing Federation john.bryant@housing.org.uk Page 12

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