Localism Bill

Baroness Hayter of Kentish Town Excerpts

Wednesday 7th September 2011 Lords Chamber

Moved by

[Baroness Hayter of Kentish Town]

52A: Clause 163, page 152, line 8, at end insert—
“( ) In section 36 of the Housing and Regeneration Act 2008 (information in relation to social housing) in subsection (1) after paragraph (c) insert—
“(d) engaging with the Housing Ombudsman.””

[Baroness Hayter of Kentish Town]

In moving Amendment 52A, I shall speak in favour of amendments in the same group, particularly Amendment 68, standing in the name of my noble friend Lord Whitty and myself, and of similar principles as set out in Amendment 69, which appears in my name and in the names of my noble friend Lord Kennedy and the noble Lord, Lord Best.

Clause 167 introduces what is called a “democratic filter” as regards the housing ombudsman. What it means is that all complaints that currently go to the housing ombudsman would instead have to be taken to an MP, a councillor, or a tenant panel member for a hearing. Not only that, but a tenant would not be able to take their case to the ombudsman unless agreed to by one of these people, giving them a veto over these citizens’ access to the housing ombudsman.

I would like to go through seven reasons for resisting this clause. The first is the role of MPs untrained in this area and the conflicts of interest that might be involved, which I think are fairly obvious. It would be a brave MP or councillor who rejected a complaint maybe three weeks before an election. The councillor could, of course, be the provider of housing, which would be a serious conflict of interest. What if that MP or councillor had already heard of the complaint in their surgery in their role of representative? How could they then adjudicate de novo on a complaint? If the councillor happened to know the local housing official, it would hardly be seen as an independent hearing of the complaint.

Furthermore, our MPs and councillors, wonderful though they are, are not trained in alternative dispute resolution or complaints handling, or in the accurate recording of such findings and giving the reasons thereof; nor indeed are most of them well-versed in some basic rules of natural justice and fairness and the handling of evidence. They will not be accustomed to awarding redress and they will not have the authority to enforce their awards.

There could also be a threat to a tenant’s privacy if they had to reveal some personal circumstances to an elected officer who was not under a code of conduct to respect confidentiality. There could be a lottery between the findings of different councillors and MPs. At present the housing ombudsman deals with about 5,000 cases per year, with a high measure of consistency to add to the centrality of fairness. It could, of course, also be a very heavy burden on an MP and councillor. I have to confess that I have been neither, but I do wonder whether they are ready for this extra little task.

It would also make MPs adjudicators. They would therefore lose their role as champions on behalf of their constituents, quite unable to advise them on how to formulate a complaint if they themselves were the people to hear the complaint. Furthermore, having rejected the complaint, how could they then promote it to the housing ombudsman?

So the first of the seven problems is about the role of the councillor and MP. Secondly, the British and Irish Ombudsman Association strongly opposes the proposed filter in the Bill. The association believes:

“Public service ombudsmen form an integral part of the administrative justice system and it is essential that citizens’ access to justice should be unfettered. Any restriction on access is counter to the principles upon which the ombudsman institution is founded”.

Indeed, one of the principal conditions for being an ombudsman is that citizens should have direct access. The Parliamentary and Health Service Ombudsman regards their MP filter as restricting access to their service.

Thirdly, let me quote from others. The Law Commission says that this clause as it stands could hinder investigations and it calls for the filter in this clause to be scrapped. The commission prefers a dual system whereby complainants could either go through a local representative or direct to the housing ombudsman, which is what these amendments set out.

The National Housing Federation believes that MPs and councillors should only be involved at the discretion of the complainant, not at the insistence of the Government. The federation strongly opposes the proposal in the Bill to deny access to the ombudsman without the MP or councillor’s permission. It also notes that similar requirements have been abolished elsewhere, such as for the Local Government Ombudsman.

Coming from Kentish Town, perhaps your Lordships will excuse me if I also refer to the Camden Association of Street Properties and Kentish Town District Management Committee, which have said that they are angry at the proposed block on tenants’ rights to access the ombudsman, which in their view has worked so well.

--- Later in debate ---

[Baroness Hanham]

My Lords, I do not think that it denies them the choice. I am happy to look into how the passing from one to the other can be done. We think that there should be an initial stage. Often, those initial stages work: a councillor intervenes; they see what is going on; and the matter is resolved at that level. If that does not happen and somebody goes directly to the ombudsman, it is very difficult for councillors and tenants panels to know exactly what people are thinking. People do not always want to go to the ombudsman and would quite like somebody to deal with the matter at a local level. That is why we think the initial responsibility for getting matters put right lies with one of those three groups. I am very happy to look at how we can deal with the question of whether it is a requirement for the MP or local councillor to be the final arbiter of when a matter is passed on to the local ombudsman.

[Baroness Hayter of Kentish Town]

My Lords, I thank the Minister for her response and, indeed, I thank all noble Lords who have spoken. We all support the idea that the service provider should be the first person to solve the matter and that there should be good ways of doing so. We all prefer local resolution and we all want councillor involvement. I do not think that there is anything between us on that. The only difference is in whether an extra layer should be added and whether we want a veto regarding whether people can, after that extra layer, go to the Housing Ombudsman.

Obviously I am addressing myself to those who I think have already reached a compromise. I hope that they have not, because some problems remain with the amendments, which may not now be moved. One, which has not yet been covered, is that the complaint is still required to be made in writing. Part of our amendment was intended to remove that requirement. I realise that we are on Report rather than in Committee, and therefore that may be a possibility. However, it would be a new statutory requirement. It would go against good practice and, indeed, the Law Commission has specifically recommended against it. Its latest report on public service ombudsmen states:

“We recommend that all formal, statutory requirements that complaints submitted to the public service ombudsmen be written are repealed”.

That is because of vulnerable consumers.

[Lord Greaves]

Does the noble Baroness accept that our amendments are not intended to be a perfect answer? We tabled them to persuade the Minister and the Government not to resolve the matter finally today but to give us more time to discuss it before Third Reading and perhaps to come to a resolution that might be agreed around the House at Third Reading. The Minister has given a very clear assurance that that will now happen. The matter can be brought back at Third Reading and, on that basis, I wonder whether the noble Baroness will withdraw her amendment.

--- Later in debate ---

[Baroness Hayter of Kentish Town]

The problem that remains—and I shall explain why I think there is still a problem—is the Minister’s final response, in which she did not give an assurance that the same right will remain for social housing tenants as exists for every other ombudsman—that of direct access to the ombudsman for justice without having a filter.

I should like to say one other thing about what I understand was an attempt to find a way through. Procedurally, I think that it is a bit of a nonsense to say that you must go to your MP or councillor in order to be able to go to the Housing Ombudsman but that if they say no, you can still go anyway. I accept that the wording was an attempt to get through this afternoon’s discussion but it is a bit of a nonsense to say, “Go through your MP but, if they say no, you have an automatic right to go anyway”. That does not seem to represent progress; nor does it remove the extra layer. If the councillor or MP is to become involved, they have to carry out another inquiry—they have to hear both sides of the case. That is all that I mean by natural justice. I believe that councillors and MPs are champions of their electors but I do not think that they are adjudicators. I deliberately use the words “adjudication” or “resolution”. In other words, they resolve a problem where someone else cannot, and coming in with a fresh mind rather than being a champion seems to be very important. I believe that it would be a form of discrimination to say that just one group could not go directly to an ombudsman. The noble Lord, Lord Best, chairs the Property Ombudsman service. I was a member of the Surveyors Ombudsman Service. In all these cases, people are allowed direct access to an ombudsman.

This is a serious matter regarding justice and I should like to test the opinion of the House.

--- Later in debate ---

[Lord Newton of Braintree]

Before the noble Lord withdraws the amendment, as I presume he will, I will express the hope that the House will go along with this. We got into a mess earlier over the vote because of the separation of these issues, which could have been linked. We now have an opportunity to take up the Minister's offer of discussion. I think that we should, and I hope that neither she nor we will dig in out of purism, and that the Clerks will have their ears open.

[Baroness Hayter of Kentish Town]

Of course, technically we voted on Amendment 53A. I did not move the other amendments.