13 August, 2020
Published in July and with actions required by the end of the year, new sanctions being imposed in "shadow" form now and in earnest from January, the Housing Ombudsman's Complaint Handling Code is a significant addition to the Housing Ombudsman Scheme. Membership of the Scheme includes an obligation to comply with the Code.
Landlords who are in the Scheme need to start getting ready now before consequences start to flow from the application of the new Code.
The New Code sets out to establish some consistent best practice in handling complaints from residents and is mostly concerned with accessibility of complaints procedures and communication with residents about their complaints. It seeks to encourage a positive complaints handling culture as a means of learning from complaints to achieve improvements.
The Code does not prescribe all elements of a complaints process and only sets out specific requirements where the Ombudsman believes consistent practice is essential. Around that core element there is scope for discretion for providers to set up complaint procedures that work for their residents. Senior Housing Ombudsman Service (HOS) staff took questions on the new Code on 28 July and several answers demonstrated that there is room for flexibility where that is agreed with the resident and documented.
All landlords must complete and send to HOS a self-assessment of their compliance with the New Code by 31 December That assessment must also go to Board and be publicised. There is a further window until March 2021 to make changes as a result of the self-assessment.
The Code starts with a new definition of "complaint" making the application of the Code wider and complaints easier to start. Awareness of what must be treated as a compliant will be essential to make sure complaints are not missed. The grounds for refusing to log and handle a complaint are limited in HOS's view and the landlord must give a full explanation before using them.
HOS declares that it will not accept a complaint procedure with mor than three stages and requires a specific explanation of why there should be three stages rather than two. A single-stage process is also unacceptable. Landlords will need to reassess their complaint handling procedures and fit them into the Code's structure. HOS took several questions about "stage zero" or informal processes and how they should work and landlords will need to have a clear policy on when to kick off a formal complaint procedure that they can justify to HOS.
How feedback and challenges from residents and affected staff fit into the process will be another point for assessment and clarification because it might introduce what HOS would see as further stages.
The Code requires landlords to have specific timescales in their procedures which cannot exceed those in the Code. Landlords can choose shorter timescales although the incentive to do so is unclear given the potential for penalties.
The Code sets out what should be taken into account when considering a remedy and gives a range of remedies.
HOS expects the Code to affect Board/Governance ,Executive and Operational levels different ways. The Code contains those expectations and changes to training and internal processes at all levels may be needed to deliver on those.
HOS can issue complaint handling failure notices. These will happen in "shadow" form until January 2021. Where a complaint is in the landlord's process or HOS is requesting information for an investigation it will explain what it requires and allow an opportunity for rectification after which it will issue a notice if action is not taken.
After that, information on notices issued against each landlord and reasons for them will be published quarterly by HOS and shared with the RSH. If HOS has "significant concerns" it can engage other regulators presumably including the FCA, Charity Commission, CQC and/or HSE).
There are some references in the Code to how landlords should address the cross-over to possible legal action in terms of when to refuse a complaint and how to offer remedies without an admission of liability.
As one of the suggested remedies is rectification of information the overlap with the right to correction or erasure of personal data under the GDPR is not addressed. That runs to a one-month response time which can be extended in complex cases. Whether classifying a complaint as a GDPR rights request rather than a HOS Code complaint would be a valid approach can be addressed in the landlord's compliance self-assessment. There are references to keeping individua staff and contractor employees out of complaint communications and that can be aligned with good data minimisation practice in many cases. It may be more of challenge where specific allegations approach the line between corporate responsibility, vicarious liability and individual misconduct or even criminality.
Self-assessment against the new Code is the first item on the agenda and what follows will depend on the outcome. As the Code anticipates complaint handling to join up to governance assurance, performance management and front-line service provision there will be effects across organisations - or so HOS expects.
For more information contact Daniel Milnes in our Governance, Procurement & Information department via email or phone on 01254 222313. Alternatively send any question through to Forbes Solicitors via our online Contact Form.