The MHCLG have announced a consultation ‘Strengthening consumer redress in the housing market’, which primarily about reviewing and reforming Ombudsman schemes in the housing sector, with the proposal floated for a single Ombudsman/redress scheme across the whole housing sector – social and private landlord, letting agents, tenants and buyers of new build properties. Even, it seems, local authority homelessness services.

The document is worth a read (and a response), both for what it says about MHCLG thinking on the issue, and also for what it doesn’t say – the points of lack of clarity. Rather than address the questions posed by the consultation, I want to consider some of the things that it doesn’t really address, or that it seems a bit confused about.

The language of ‘consumer rights’ has increasingly been used about housing by both the Government and Labour, but what is absent from the consultation is any sense of whether this is the right model for housing issues and whether housing is best thought of as a ‘consumer service’ at all.

To take one example – where there is already confusion in the private rented and leasehold redress schemes – agents have the landlord or freeholder as their clients. They are not providing a service to tenants or leaseholders, but only acting on behalf of the landlord/freeholder. Does it make sense to treat tenants’ complaints about letting agents as a ‘consumer complaint’? This may be, of course, why the property redress schemes will only deal with tenants’ complaints about delay, rudeness and breach of code of conduct.

Another starker example is that of the homeless applicant to a local authority. It makes no sense to call this a consumer/service provider relationship.  There is no purchase, and the Local Authority’s obligations are limited to those set out in legislation.

A linked confusion in the consultation is about the extent of an Ombudman’s role. What should they examine and what would ‘redress’ be for?

Ombudsmen are orientated to process, usually the handling of a complaint about service. But how far does this address the actual issue giving rise to the complaint? Mostly it doesn’t. Take repairs as an example. For social tenants now, the tenant makes a complaint about a repair problem. The tenant then goes through landlord’s internal complaints process. The Housing Ombudsman looks (or may look) at the landlord’s complaints handling, not whether the repair has actually been done, or even done adequately.

New build issues may indeed involved inadequate responses to complaints, but how far an Ombudsman could give an adequate remedy by addressing complaint handling alone, where what is generally at issue are building quality failures and the rectification of those is, shall we say, open to question.

Similarly, the property redress schemes are concerned with conduct, not substantive issues – as mentioned above, delay, rudeness and breach of any code of conduct. Not matter of substantive failure to follow legal obligations.

As an aside, requiring all private landlords to sign up to an ombudsman scheme would be interesting. It would be de facto national licensing, and would require a national code of conduct for landlords. After all, how could an ombudsman deal with service failures where there are no set service standards?

The Local Government and Social Care Ombudsman admittedly takes a wider view. What is at issue in complaints about homelessness applications, for example, is compliance with statutory requirements and the LGO has, it seems, no difficulty in extending its findings to breach of the law as well as poor conduct (eg, over B&B accommodation over 6 weeks, or gatekeeping).

But their remit is where someone has (Local Government Act 1974, s.26)

sustained injustice in consequence of maladministration in connection with action taken by or on behalf of an authority to which this Part of this Act applies, being action taken in the exercise of administrative functions of that authority, a Local Commissioner may investigate that complaint.

But even then there are issues about redress.

As the consultation recognises, most of the Ombudsman schemes have no power to have their decisions enforced. While the property redress schemes can end a defaulter’s membership (which is required by law), on the whole, it is assumed that the badly behaved party will comply with recommendations.

But to make the decisions enforceable is to turn the ombudsman into a quasi judicial body, even if it could be done. There would have to be an appeals process, probably to a court. There would be issues about evidence and about legal interpretation. In fact, this is to re-invent the court.

Some ombudsmen schemes have been a powerful force for highlighting and changing bad behaviour. The Local Government Ombudsman would be an example of this. But if the Government is intending on developing and extending an Ombudsman/consumer redress approach, clarity about the model being adopted, the extent of its remit, and the nature of its powers is vital.

For what it is worth, I do not think that a unified, enhanced ombudsman scheme should be trespassing on the territory of the courts and tribunals. One might deal with standards of behaviour outside of legal obligations, the other with issues of fact and law…