Housing Ombudsman “remains concerned” about practices of some social landlords in handling of complaints and legal claims

The Housing Ombudsman has said he remains concerned about some social landlords’ handling of complaints alongside legal claims.

Richard Blakeway’s comments were contained in an open letter to landlords in the wake of the Awaab Ishak case, urging them to self-assess against the 26 recommendations made last year in a 'Spotlight' report on damp and mould.

Landlords should discuss that assessment at its governing body, and then publish the outcome, he said. The letter added that the Ombudsman plans to request this assessment as part of its investigation into relevant complaints.

Blakeway went on to highlight the Ombudsman's October 2021 guidance for landlords on the pre-action protocol for housing conditions claims, when it revised its jurisdiction guidance to address concerns about the way some landlords handled complaints when a legal claim was also made.

“Although progress is being made by landlords to get effective practices in place, I remain concerned,” the Ombudsman said.

Blakeway wrote that having an accessible complaints procedure was essential to promote alternatives to the courts to resolve disputes.

He said that he had seen complaints closed prematurely because the protocol had commenced or even when the resident had sought legal representation.

He added: "It is the resident’s right to decide which route they would like to follow to seek redress, but it is important that landlords do not limit access to alternative redress – use of our service is actively encouraged through the protocol.

“Landlords should consider reviewing restrictive policies which exclude consideration of complaints where a pre-action legal claim has been made and instead consider how better to use the complaints procedure to resolve these disputes.”

The Housing Ombudsman said: "To be absolutely clear as I was in the report: use of the pre-action protocol does not constitute legal proceedings and therefore does not preclude the landlord responding through the complaints procedure, or the Ombudsman formally investigating.

“No landlord should advise its resident that they cannot refer their complaint to the Ombudsman in these circumstances.”

In addition, even once papers have been served in court, the landlord should be certain that the claim reflects all aspects of the complaint before suspending the complaint procedure, he emphasised.

The Ombudsman accepted that there was “poor practice in a minority of the legal sector” in relation to disrepair claims.

But he also stressed the importance of landlords remaining committed to inspecting properties as soon as a claim is raised and to completing the repairs needed as soon as practicable.

"Where a resident has been advised by a solicitor to deny access to complete the repairs, the landlord should consider alternative methods of gaining access, such as seeking an injunction.

"I would also re-emphasise our guidance in the Complaint Handling Code of the importance of landlords taking action to put things right, such as a repair, without waiting for the complaints procedure to be completed."

Blakeway wrote that if landlords can evidence that they are struggling to progress a complaint alongside a legal claim, he would encourage them to raise it with the Ombudsman's dispute support team, who could offer guidance and possible options for progression, including taking the complaint for investigation if necessary.

"Equally, if a landlord does not accept or progress a complaint because of a legal claim, we may, as we do now, issue a Complaint Handling Failure Order", Blakeway noted.

In the open letter the Ombudsman stressed two areas of the Spotlight report: the recommendation that landlords take a zero-tolerance approach to damp and mould, and the concerns over the tone of some communications, especially language such as "lifestyle choices" and "behaviours" which place blame on the resident.

He added: "I consider the use of patronising, stigmatising or potentially discriminatory language as 'heavy handed' and therefore may, under section 52(f) of our Scheme, make a finding of maladministration."

In the Awaab Ishak case, the landlord's repair team attributed the mould in the home to "lifestyle and bathing habits" – an assertion that the landlord later accepted as "inappropriate" during the inquest.

The Ombudsman encouraged landlords to maintain an open and accessible complaints procedure.

He also called for a change to the defensiveness of some landlords who "too often" may suggest that the circumstances that led to service failure in one case are isolated or historical, "when in reality they are repeated too often across the casework we handle with an individual landlord or throughout the sector".

Adam Carey