SCHEDULE 2 Social rented sector: housing complaints
Social landlords required to be member of approved scheme
1
(1)
A social landlordF1, other than a local housing authority, must be a member of an approved scheme covering, or more than one approved scheme which together cover, all his housing activities.
F2(1A)
A social landlord which is a local housing authority must be a member of an approved scheme covering, or more than one scheme which together cover—
(a)
action which—
(i)
is taken by or on behalf of the authority in its capacity as a registered provider of social housing, and
(ii)
is action in connection with its housing activities so far as they relate to the provision or management of social housing (and here “social housing” has the same meaning as in Part 2 of the Housing and Regeneration Act 2008), and
(b)
action taken by or on behalf of the authority in connection with the management of dwellings owned by the authority and let on a long lease (and here “long lease” has the meaning given by section 59(3) of the Landlord and Tenant Act 1987).
(2)
If a social landlord fails to comply with the duty imposed by this paragraph, the Secretary of State may apply to the High Court for an order directing him to comply within a specified period and the High Court may, if it thinks fit, make such an order.
(3)
Nothing in this Schedule shall be construed as restricting membership of an approved scheme to social landlords.
Matters for which scheme must provide
2
(1)
A scheme shall not be approved for the purposes of this Schedule unless it makes provision for—
1.
The establishment or appointment of an independent person to administer the scheme.
2.
The criteria for membership for—
(a)
social landlords under a duty to be members of an approved scheme, and
(b)
other persons.
3.
The manner of becoming or ceasing to be a member.
4.
The matters about which complaints may be made under the scheme.
5.
The grounds on which a matter may be excluded from investigation, including that the matter is the subject of court proceedings or was the subject of court proceedings where judgment on the merits was given.
6.
The descriptions of individual who may make a complaint under the scheme.
7.
The appointment of an independent individual to be the housing ombudsman under the scheme.
8.
The appointment of staff to administer the scheme and to assist the housing ombudsman and the terms upon which they are appointed.
9.
A duty of the housing ombudsman to investigate any complaint duly made and not withdrawn, and a power to investigate any complaint duly made but withdrawn, and where he investigates to make a determination.
10.
A power of the housing ombudsman to propose alternative methods of resolving a dispute.
11.
The powers of the housing ombudsman for the purposes of his investigations, and the procedure to be followed in the conduct of investigations.
12.
The powers of the housing ombudsman on making a determination.
13.
The making and publication of annual reports by the housing ombudsman on the discharge of his functions.
14.
The manner in which determinations are to be—
(a)
communicated to the complainant and the person against whom the complaint was made, and
(b)
published.
15.
The manner in which the expenses of the scheme are to be defrayed by the members.
16.
The keeping and auditing of accounts and the submission of accounts to the Secretary of State.
17.
The making of annual reports on the administration of the scheme.
18.
The manner of amending the scheme.
(2)
The Secretary of State may by order amend sub-paragraph (1) by adding to or deleting from it any item or by varying any item for the time being contained in it.
(3)
An order under sub-paragraph (2) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
Approval of scheme, or amendment, and withdrawal of approval
3
(1)
An application to the Secretary of State for approval of a scheme shall be made in such manner as the Secretary of State may determine, and shall be accompanied by such information as the Secretary of State may require.
(2)
If it appears to the Secretary of State that the scheme—
(a)
provides for the matters specified in paragraph 2, and
(b)
is a satisfactory scheme for the purposes of this Schedule,
he shall approve the scheme.
(3)
An amendment of an approved scheme is not effective unless approved by the Secretary of State.
Sub-paragraph (1) applies in relation to an application for approval of an amendment as it applies to an application for approval of a scheme; and the Secretary of State shall approve the amendment if it appears to him that the scheme as amended meets the conditions in sub-paragraph (2).
(4)
The Secretary of State may withdraw his approval of a scheme.
(5)
If the Secretary of State proposes to withdraw his approval of a scheme, he shall serve on the person administering the scheme and on the housing ombudsman under the scheme, a notice stating—
(a)
that he proposes to withdraw his approval,
(b)
the grounds for the proposed withdrawal of his approval, and
(c)
that the person receiving the notice may make representations with respect to the proposed withdrawal of approval within such period of not less than 14 days as is specified in the notice;
and he shall, before reaching a decision on whether to withdraw approval, consider any representations duly made to him.
(6)
The Secretary of State shall give notice of his decision on a proposal to withdraw approval of a scheme, together with his reasons, to every person on whom he served a notice under sub-paragraph (5).
(7)
Withdrawal of approval by the Secretary of State has effect from such date as is specified in the notice of his decision.
(8)
Where the person administering a scheme is given notice of a decision to withdraw approval of the scheme, he shall give notice of the decision to every member of the scheme.
Notice to be given of becoming a member of an approved scheme
4
(1)
A social landlord who—
(a)
becomes a member of an approved scheme, or
(b)
is a member of a scheme which becomes an approved scheme,
shall, within the period of 21 days beginning with the date of becoming a member or, as the case may be, of being informed of the Secretary of State’s approval of the scheme, give notice of that fact to the F3Regulator of Social Housing .
(2)
The F3Regulator of Social Housing, on receiving the notice, shall record his membership of an approved scheme.
(3)
A person who fails to comply with sub-paragraph (1) commits an offence and is liable on summary conviction to a fine not exceeding level 4 on the standard scale.
Proceedings for such an offence may be brought only by or with the consent of the F3Regulator of Social Housing or the Director of Public Prosecutions.
Withdrawal from approved scheme
5
(1)
A social landlord wishing to withdraw from membership of an approved scheme shall send notice of his proposed withdrawal to the F3Regulator of Social Housing .
(2)
The notice shall specify—
(a)
the housing activities in relation to which he is subject to investigation under the scheme,
(b)
the approved scheme or schemes of which he is also a member or will, on his withdrawal, become a member, and
(c)
under which scheme or schemes the housing activities mentioned in paragraph (a) will be subject to investigation after his withdrawal.
(3)
If the F3Regulator of Social Housing is satisfied that withdrawal by the landlord from the scheme will not result in a failure to comply with his duty under paragraph 1, it shall confirm the landlord’s withdrawal from the scheme.
(4)
If the F3Regulator of Social Housing is not so satisfied, it shall withhold confirmation of the landlord’s withdrawal from the scheme; and the landlord shall continue to be a member of the scheme and bound and entitled under the scheme accordingly.
Register of approved schemes
6
(1)
The F3Regulator of Social Housing shall maintain a register of schemes approved by the Secretary of State for the purposes of this Schedule and of the social landlords who are members of those schemes.
(2)
The Secretary of State shall give notice to the F4Housing Corporation—
(a)
when he grants or withdraws his approval of a scheme, and
(b)
when he approves an amendment of a scheme,
and he shall supply the F4Housing Corporation with copies of any approved scheme or any amendment to a scheme.
(3)
A member of the public shall be entitled, upon payment of such fees as the F3Regulator of Social Housing may determine, to receive a copy of an approved scheme and a list of the social landlords who are members of it.
Determinations by housing ombudsman
7
(1)
A housing ombudsman under an approved scheme shall investigate any complaint duly made to him and not withdrawn, and may investigate any complaint duly made but withdrawn, and where he investigates a complaint he shall determine it by reference to what is, in his opinion, fair in all the circumstances of the case.
(2)
He may in his determination—
(a)
order the member of a scheme against whom the complaint was made to pay compensation to the complainant, and
(b)
order that the member or the complainant shall not exercise or require the performance of any of the contractual or other obligations or rights existing between them.
(3)
If the member against whom the complaint was made fails to comply with the determination within a reasonable time, the housing ombudsman may order him to publish in such manner as the ombudsman sees fit that he has failed to comply with the determination.
(4)
Where the member is not a social landlord, the housing ombudsman may also order that the member—
(a)
be expelled from the scheme, and
(b)
publish in such manner as the housing ombudsman sees fit that he has been expelled and the reasons for his expulsion.
(5)
If a person fails to comply with an order under sub-paragraph (3) or (4)(b), the housing ombudsman may take such steps as he thinks appropriate to publish what the member ought to have published and recover from the member the costs of doing so.
(6)
A member who is ordered by the housing ombudsman to pay compensation or take any other steps has power to do so, except that a member which is also a charity shall not do anything contrary to its trusts.
F5Complaints must be referred by designated person unless paragraph 7B applies
7A
(1)
A complaint against a social landlord is not “duly made” to a housing ombudsman under an approved scheme unless it is made in writing to the ombudsman by a designated person by way of referral of a complaint made to the designated person.
(2)
Sub-paragraph (1) is subject to paragraph 7B (complaints that need not be made by way of referral).
(3)
For the purposes of this paragraph “designated person” means—
(a)
a member of the House of Commons,
(b)
a member of the local housing authority for the district in which the property concerned is located, or
(c)
a designated tenant panel (see paragraph 7C(1)) for the social landlord.
(4)
Before making a referral under sub-paragraph (1), a designated person must obtain written consent from the complainant or the complainant's representative.
(5)
Sub-paragraphs (6) and (7) apply if under sub-paragraph (1) a designated person refers a complaint to a housing ombudsman.
(6)
If the ombudsman decides—
(a)
not to investigate the complaint, or
(b)
to discontinue investigation of the complaint,
the ombudsman must prepare a statement of reasons for that decision and send a copy of the statement to the designated person.
(7)
If the ombudsman completes investigation of the complaint, the ombudsman must inform the designated person of—
(a)
the results of the investigation, and
(b)
any determination made.
(8)
In sub-paragraph (3)(b) “district” in relation to a local housing authority has the same meaning as in the Housing Act 1985.
Complaints that need not be made by way of referral by designated person
7B
(1)
Paragraph 7A(1) does not apply in relation to a complaint against a social landlord made to a housing ombudsman under an approved scheme if the ombudsman is satisfied that—
(a)
the social landlord has procedures for considering complaints against the social landlord,
(b)
the matter that forms the subject of the complaint has been submitted to those procedures,
(c)
those procedures have been exhausted, and
(d)
the complaint has been made to the ombudsman after the end of the eight weeks beginning with the day on which those procedures were exhausted.
(2)
Paragraph 7A(1) does not apply in relation to a complaint against a social landlord made to a housing ombudsman under an approved scheme if—
(a)
the ombudsman is satisfied that a designated person—
(i)
has refused to refer the complaint to a housing ombudsman under an approved scheme, or
(ii)
has agreed to the complaint being made otherwise than by way of a referral by a designated person, and
(b)
the refusal, or agreement, is in writing or the ombudsman is satisfied that it has been confirmed in writing.
(3)
Paragraph 7A(3) (meaning of “designated person”) applies also for the purposes of sub-paragraph (2).
Designated tenant panels
7C
(1)
In paragraph 7A(3)(c) “designated tenant panel” means a group of tenants which is recognised by a social landlord for the purpose of referring complaints against the social landlord.
(2)
There may be more than one designated tenant panel for a social landlord.
(3)
Where a social landlord becomes a member of an approved scheme, the social landlord must give to the person administering the scheme contact details for any designated tenant panel for the social landlord.
(4)
Where a group becomes a designated tenant panel for a social landlord, the social landlord must, as respects each approved scheme of which the social landlord is a member, give to the person administering the scheme contact details for the panel.
(5)
Where a group ceases to be a designated tenant panel for a social landlord, the social landlord must inform the person administering each approved scheme of which the social landlord is a member.
(6)
A complaint referred to a housing ombudsman under an approved scheme by a designated tenant panel for a social landlord is not affected by the group concerned ceasing to be a designated tenant panel for the social landlord.
Enforcement of a housing ombudsman's determinations
7D
(1)
The Secretary of State may by order make provision for, or in connection with, authorising a housing ombudsman under an approved scheme to apply to a court or tribunal for an order that a determination made by the ombudsman may be enforced as if it were an order of a court.
(2)
Before the Secretary of State makes an order under sub-paragraph (1), the Secretary of State must consult—
(a)
one or more bodies appearing to the Secretary of State to represent the interests of social landlords,
(b)
one or more bodies appearing to the Secretary of State to represent the interests of other members of approved schemes,
(c)
one or more bodies appearing to the Secretary of State to represent the interests of tenants, and
(d)
such other persons as the Secretary of State considers appropriate.
(3)
The Secretary of State's power to make an order under sub-paragraph (1) is exercisable by statutory instrument.
(4)
A statutory instrument containing an order made by the Secretary of State under sub-paragraph (1) is subject to annulment in pursuance of a resolution of either House of Parliament.
Publication of determinations, &c.
8
(1)
A housing ombudsman under an approved scheme may publish—
(a)
his determination on any complaint, and
(b)
such reports as he thinks fit on the discharge of his functions.
(2)
He may include in any such determination or report statements, communications, reports, papers or other documentary evidence obtained in the exercise of his functions.
(3)
In publishing any determination or report, a housing ombudsman shall have regard to the need for excluding so far as practicable—
(a)
any matter which relates to the private affairs of an individual, where publication would seriously and prejudicially affect the interests of that individual, and
(b)
any matter which relates specifically to the affairs of a member of an approved scheme, where publication would seriously and prejudicially affect its interests, unless the inclusion of that matter is necessary for the purposes of the determination or report.
Absolute privilege for communications, &c.
9
For the purposes of the law of defamation absolute privilege attaches to—
(a)
any communication between a housing ombudsman under an approved scheme and any person by or against whom a complaint is made to him,
(b)
any determination by such an ombudsman, and
(c)
the publication of such a determination or any report under paragraph 8.
Appointment and status of housing ombudsman
10
(1)
Where an approved scheme provides that it shall be administered by a body corporate, that body shall appoint on such terms as it thinks fit the housing ombudsman for the purposes of the scheme and the appointment and its terms shall be subject to the approval of the Secretary of State.
(2)
Where an approved scheme does not so provide—
(a)
the housing ombudsman for the purposes of the scheme shall be appointed by the Secretary of State on such terms as the Secretary of State thinks fit,
(b)
the Secretary of State may by order provide that the housing ombudsman for the purposes of the scheme shall be a corporation sole, and
(c)
the staff to administer the scheme and otherwise assist the ombudsman in the discharge of his functions shall be appointed and employed by him.
(3)
The Secretary of State may at any time remove from office a housing ombudsman (whether appointed by him or otherwise).
(4)
A housing ombudsman appointed by the Secretary of State or otherwise shall not be regarded as the servant or agent of the Crown or as enjoying any status, privilege or immunity of the Crown or as exempt from any tax, duty, rate, levy or other charge whatsoever, whether general or local, and any property held by him shall not be regarded as property of, or held on behalf of, the Crown.
F6Collaborative working with Local Commissioners
10A
(1)
If at any stage in the course of conducting an investigation under this Act a housing ombudsman forms the opinion that the complaint relates partly to a matter within the jurisdiction of a Local Commissioner, the ombudsman may, subject to sub-paragraph (2), conduct an investigation under this Act jointly with that Commissioner.
(2)
A housing ombudsman must obtain the consent of the complainant or the complainant's representative before agreeing to a joint investigation referred to in sub-paragraph (1).
(3)
If a housing ombudsman forms the opinion that a complaint which is being investigated by a Local Commissioner relates partly to a matter within the jurisdiction of the ombudsman, the ombudsman may conduct an investigation jointly with that Commissioner.
(4)
If a housing ombudsman conducts an investigation jointly with a Local Commissioner, the requirements of paragraph 7 may be satisfied by a report made jointly with that person.
(5)
A joint report made under this paragraph must distinguish determinations of a housing ombudsman from other findings or recommendations.
Subscriptions payable in respect of approved schemes
11
(1)
Members of an approved scheme shall pay a subscription, calculated as set out in the scheme, to the person administering the scheme.
F7(1A)
If a change in the method of calculation under sub-paragraph (1) would result in a member's subscription being more than it would otherwise be, the change may be made only if the Secretary of State approves it.
(1B)
An approved scheme's total defrayable expenses for a period may be more than the scheme's total defrayable expenses for the immediately-preceding corresponding period only if the Secretary of State approves the increase.
(1C)
In sub-paragraph (1B) “defrayable expenses”, in relation to a scheme, means expenses of the scheme that are to be defrayed by subscriptions from members of the scheme.
(2)
If a social landlord fails to comply with his duty under paragraph 1, the Secretary of State may determine—
(a)
which approved scheme or schemes he should have joined, and
(b)
what sums by way of subscription he should have paid,
and may require him to pay those amounts to the person administering the scheme or schemes.
(3)
The person administering an approved scheme may recover sums payable under sub-paragraph (1) or (2) as if they were debts due to him.
(4)
The Secretary of State F8... may pay grant and provide other financial assistance to—
(a)
a body corporate administering an approved scheme, or
(b)
in a case where paragraph 10(2) applies, to the housing ombudsman under an approved scheme,
for such purposes and upon such terms as the Secretary of State F9... thinks fit.
F10General provision about orders
12
Section 52 shall apply to an order of the Secretary of State under this Schedule (with any necessary modifications).