David Watkinson examines proposals to establish a Housing Complaints Resolution Service (HCRS) as put forward by the Government
The recent Mediation World newsletter included an article by Bill Marsh (8/2/2019) headed “Housing dispute resolution proposals will impact developers” (and landlords as it appeared). A planning law expert was quoted as describing the proposals as potentially “quite onerous”.
The article referred to a press release from the Ministry of Housing and Local Government (24/1/2019) accompanying a statement from James Brokenshire MP (Housing, Communities and Local Government Minister) who said:-
“Creating a housing market that works for everyone isn’t just about building homes. It’s about ensuring people can get the help they need when something goes wrong…The proposals I have announced today will help ensure all residents are able to access help when they need it so disputes can be resolved faster and people can get compensation when owed”.
The proposals are contained in “Strengthening Consumer Redress in the Housing Market”, the Government’s 50 page summary of responses to a consultation exercise on this topic (which closed in February 2018) together with its own response which was published in January 2019.
The proposals are to establish a Housing Complaints Resolution Service (HCRS). This will cover private housing (not public housing which is subject to a separate consultation process, completed and to which the Government will respond in Spring 2019, nor to housing association tenants, although not entirely clear). The Service will cover freeholders of leasehold properties, all private sector tenancies, residents of park home sites, those in privately provided purpose built student accommodation. Prospective owners of new builds will be dealt with separately by a New Homes Ombudsman (announced in October 2018). Landlords will be required to sign up to the HCRS subject to a penalty of a fine up to £5,000 for each breach.
The HCRS will be developed in conjunction with a Redress Reform Working Group (RRWG) made up of “representatives from across the sector” (page 10 Response).
When and what?
It is at this point that the proposals come to a juddering halt. Any necessary legislation eg for compulsory membership of the scheme will take place “when Parliamentary time allows”. Moreover, there are no indications, even in outline, as to who or what will comprise the HCRS (save reference to the possibility of it being “a broad range of organisations” (p44 para 113), how they will be selected, its procedure, timetable for dealing with complaints, remedies, sanctions or contents of Code of Practice (although there will be one). Doubtless these matters will all be considered by the RRWG although who comprises that and how they will be selected is also left open.
Finally, when the HCRS starts work, what protection does a tenant who has made a complaint have in the context of the landlord’s entitlement to no fault eviction under s.21 Housing Act 1988? There is currently no date for the Government’s response to its consultation on “Overcoming the barriers to longer tenancies in the private rented sector” (although the Government’s proposal went no further than providing for an extension of fixed term tenancies to up to 3 years – legally possible now where landlords choose to grant them). That consultation concluded in August 2018.
A kind of model can be found in ss13/14 Deregulation Act 2015 which provides that the possession order procedure under s.21 cannot be used if a private sector landlord has failed to respond adequately to a written complaint about the condition of the dwelling AND the local authority has served a notice requiring works in relation to the same subject matter or similar under the Housing Act 2004. The effectiveness of this procedure was the subject of a question in the longer tenancy consultation. However, considering the relative speed with which a s.21 order can be obtained compared to the process a local authority will go through before serving a notice, such a requirement is likely to impede any effectiveness.
The pity of all this is that a comprehensive and effective ADR system for the housing sector could simultaneously assist tenants and occupiers as well as improve housing stock. It looks however like there is some considerable way to go before such a system and therefore any benefits of it, is realised.