Localism Bill

Memorandum submitted by the Administrative Justice and Tribunals Council (L 61)

Introduction

 

1. This memorandum is submitted by the Administrative Justice and Tribunals Council (AJTC) in response to the Public Bill Committee’s call for written evidence in relation to the Localism Bill

Executive Summary

2. The key points that the AJTC wishes to make are:

- It would be counter to efficiency and justice, and contrary to best practice, to introduce a ‘democratic filter’ between tenants and the housing ombudsman.

- It would be unwise to introduce legal enforceability for housing ombudsman decisions without widespread consultation and deep analysis of the virtuous circle generated by the current co-operative approach to business.

The role of the AJTC

3. The AJTC is an advisory Non-Departmental Public Body (NDPB) established by the Tribunals, Courts and Enforcement Act 2007 (TCE). The AJTC is the successor body to the Council on Tribunals (CoT), which was set up in 1958 following the publication of the Franks Report on Administrative Tribunals and Enquiries in 1957. The current AJTC Chairman is Richard Thomas CBE.

4. The TCE Act gave the AJTC a wider remit than that of the CoT, namely to:

· keep the administrative justice system under review;

· keep under review and report on the constitution and working of tribunals designated as being under its oversight;

· keep under review and report on the constitution and working of statutory inquiries.

5. The Act defines "the administrative justice system" as

"…..the overall system by which decisions of an administrative or executive nature are made in relation to particular persons, including:

(a) the procedures for making such decisions,

(b) the law under which such decisions are made, and

(c) the systems for resolving disputes and airing grievances in relation to such decisions." [TCEA 2007, Schedule 7, para 14]

6. In acquiring a new general duty to keep the administrative justice system under review the AJTC thereby gained a new role in relation to ombudsman services, which the former CoT did not have.

7. The Committee is invited to note paragraphs 15-18 of the paper attached at Annex A, examining the landscape of administrative justice, which may help give a better perspective of the AJTC’s role in relation to ombudsmen.

Further Background

8. Clauses 153-155 of the Localism Bill address the Housing Ombudsman Service.

9. The Housing Ombudsman Scheme operates under s51 of the Housing Act 1996. In general terms this empowers the Ombudsman to investigate cases provided they are less than 12 months old on presentation and to make findings of maladministration against landlords where appropriate.

10. The Housing Ombudsman has made significant effort in recent years to increase accessibility to its service, within its vision of ‘raising awareness, extending access, increasing understanding’. This has led to a significant increase in caseload, but it is an expected increase that has been managed within existing resources.

11. Currently, tenants may complain to the Housing Ombudsman provided that their landlord is a member of the Ombudsman scheme and they have already completed the landlord’s direct complaint procedure. Registered social landlords are made members of the scheme by law. Some private landlords are also members of the scheme on a voluntary basis. The Housing Ombudsman will also provide information and advice in making a direct complaint to a landlord. Ombudsman determinations are not currently legally enforceable, but the Ombudsman has strong powers to publicise non-compliance or to report offending landlords to the Housing Corporation.

12. Towards the end of 2010 the AJTC considered the Law Commission’s consultation on Public Service Ombudsmen. One of the key proposals in the paper was the removal of the MP filter – a mechanism meaning that members of the public who wish to complain to the Parliamentary and Health Services Ombudsman (PHSO) can only do so via an MP. Removal of the MP filter would both increase public access to the PHSO and introduce greater consistency across the public sector ombudsman services.

Our Concerns with the Localism Bill

Access to the Housing Ombudsman

13. The AJTC is concerned that access to administrative justice will be impeded if the proposed barriers – MPs, councillors and/or tenant committees – are placed between tenants and the Housing Ombudsman. There is already, and rightly, one significant barrier to access, namely that tenants have properly exhausted their landlords’ own complaints procedures. Once a tenant has pursued that procedure to its end, it seems unnecessarily complex and bureaucratic to expect them to exhaust a second process before gaining access to the housing ombudsman.

14. The AJTC is especially concerned to see the potential introduction of a ‘democratic filter’ to the Housing Ombudsman in parallel with the Law Commission’s well-received proposal to remove the similar filter for access to the PHSO.

15. The nature of tenant complaints about landlords is often highly specific, detailed and requiring expert knowledge of housing law to resolve fairly. These are also matters that may greatly exercise the individuals concerned or be very urgent but which may have little broader resonance for publicly elected officials. The AJTC would argue strongly that it is in the interests of efficiency, fairness and justice that they reach an expert arbiter without delay.

16. In its discussion of the PHSO, the Law Commission offered a variant to the abolition of the MP filter, namely a ‘dual track’ approach whereby members of the public might by their own choice approach the PHSO directly or via their MP depending on circumstances. The AJTC would have no objection to such an approach, with one proviso. Privacy and confidentiality are often vital for tenants in pursuing complaints about their landlord. It is difficult to see how local tenant panels can play a referral role without significant risk to tenants’ privacy, so much so that their existence may well deter many legitimate complaints at the cost of justice and fairness.

Legal Enforceability of Housing Ombudsman decisions

17. The AJTC notes that clause 153 of the Bill provides for a Secretary of State power to make Housing Ombudsman decisions enforceable. While there may be good reasons for taking this approach, the AJTC would note the following characteristics of ombudsman services that have made them so powerful and effective in the absence of legal enforceability:

- Ombudsman decisions carry moral authority due to their expertise, independence and impartiality, and going against them can cause significant reputational damage. This may explain why non-compliance is extremely rare.

- Ombudsmen develop strong relationships with their constituents, and are often able to persuade through dialogue without recourse to law.

- The co-operative approach of ombudsmen reduces defensiveness on the part of landlords and thus avoids destructive behaviours.

The value of this approach is borne out by the tiny incidence of non-compliance with ombudsman decisions. The AJTC would recommend very careful consideration by ministers before risking damage to this powerful and productive culture through the introduction of legal enforcement.

Conclusion

18. In conclusion, the AJTC is concerned that certain of the proposals regarding the Housing Ombudsman in the Localism Bill may have a detrimental effect on access to justice for social tenants and may undermine the balanced and sophisticated relationship that has developed between the Housing Ombudsman and the organisations that the service oversees.

19. In both cases, these proposals are not consistent with the direction of travel offered by the recent Law Commission consultation on Public Services Ombudsmen. This inconsistency is one more indication of the shortcomings of a piecemeal approach to reform. The AJTC has argued consistently that a fully comprehensive review of all ombudsman services in the UK is now required.

February 2011