Guidance on Pre-Action Protocol for Housing Conditions Claims and service complaints

Issue

There will always be some matters of disrepair that will be more complex and difficult to resolve than others. Residents may consider resorting to legal claims to get these issues resolved, and landlords are concerned about the increase in the number of legal firms seeking out disrepair claims. This guidance note is particularly concerned with claims made pursuant to the Pre-Action Protocol for Housing Conditions Claims (the protocol) but can be applied to any relevant legal action.

Legal action can be stressful, costly and time-consuming for residents and, for landlords, it can divert much needed funds away from investment programmes. It is, therefore, particularly important that these cases are handled with care to maintain the relationship between the resident and the landlord and to minimise the risk of them becoming protracted and contentious.

Background

In order to effectively manage these cases, landlords should ensure that they are equipped to identify cases at risk of becoming legal issues at an early stage and have appropriate strategies in place to progress them accordingly. These processes should have continuing emphasis on ensuring that the resident: is kept informed; feels that the landlord is taking the issue seriously; and is assured that the matter is progressing.

The Ombudsman’s approach

Under the Housing Act 1996, where we investigate a complaint, we must determine it by reference to what is, in the Ombudsman's opinion, fair in all the circumstances. When assessing cases involving potential legal claims, we will often consider how the landlord handled both the substantive repairs complained of and the associated formal complaint.

Managing legal cases

Whilst it is a resident’s prerogative to follow the protocol and make a claim, they should first consider whether following alternative dispute resolution (ADR) avenues, such as the landlord’s internal complaints process (ICP) and our investigation process, might be more beneficial. Both the Ombudsman and the courts will look to see that ADR has been attempted in the first instance. Making use of ADR will usually mean:

• More timely resolution of the issues
• A more simple and flexible approach to redress
• No legal costs incurred by the resident
• Reduced costs for the landlord allowing greater expenditure on investment programmes
• The investigation and resolution will not be limited in scope in the way that a disrepair claim would be
• The potential to benefit other residents in similar circumstances through resolution and proactive learning
• There is an impartial and independent assessment of the landlord’s actions by the Ombudsman.

Even when a landlord receives correspondence initiating the protocol, it is important that they do not disengage from either the ICP or the repair issue itself. Commencing the protocol does not constitute legal proceedings and ADR can be pursued at any stage of the protocol.

The Ombudsman’s view is that a matter does not become ‘legal’ until proceedings have been ‘issued’. The issuing of proceedings involves filing details of the claim, such as the Claim Form and Particulars of Claim, at court. The court will then serve this on the respondent for them to answer to.

The Ombudsman also stresses the importance of landlords remaining committed to inspecting properties as soon as a claim is raised and to completing the repairs needed as soon as is practicable. Where a resident has been advised by a solicitor to deny access to complete the repairs, the landlord should consider alternative methods of gaining access, such as seeking an injunction.

In the interests of effectively managing legal claims and promoting ADR, landlords should consider taking the following steps:

• Being clear with the resident on how it is handling correspondence – whether under the ICP or the protocol or both.
• Clearly communicating to the resident when a complaint has exhausted the ICP, and which correspondence constitutes the final complaint response (this can be from the landlord’s complaints team or legal team/representative and can include a landlord’s response to a letter of claim under the protocol).
• Directing residents who have completed the ICP to the Ombudsman, for a free, independent and impartial assessment of the case. Whilst landlords may manage residents’ expectations around our jurisdiction, it is ultimately for us to decide whether we will investigate a complaint.
• Even when proceedings have been issued, ensuring that all matters raised in subsequent correspondence form part of those proceedings and do not need addressing via another route, such as the ICP. Landlords should make use of the full effect of their ICP wherever possible and not prematurely close complaints because of existing unrelated proceedings.
• Using intelligence from these cases to identify potentially systemic issues (which might be replicated across a building or estate) and feed into their long-term asset management strategy and/or proactive actions to prevent similar cases.

Managing the substantive issue

Whilst claims under the protocol or complaints about repairs may concern issues other than damp and mould, this section of the guidance focuses on complaints relating to this issue.

The Ombudsman has published a thematic report into complaints involving damp, mould and condensation. This report sets out best practice drawn from our casework and call for evidence.

The Ombudsman encourages landlords to consider the report’s recommendations, including their response to complex cases or where extended works may be required. When investigating an unresolved complaint, the Ombudsman’s assessment will include:

• Whether the landlord has fully and fairly investigated the issues, including engaging independent expertise where appropriate, and communicated this effectively with the resident?
• Where the issues are structural, has the landlord taken appropriate and reasonable steps to undertake repairs and address them?
• Where the issues are non-structural, has the landlord done all it can to mitigate the impact and provide appropriate support to the resident?
• Throughout its response, has the landlord considered the individual circumstances of the resident, including any vulnerabilities or health issues?
• Where significant works are required, has the landlord appropriately managed the resident’s expectations regarding timescales, considered whether a decant might be necessary, and/or completed smaller remedial works to improve the resident’s living environment pending completion of the works?
• Has the landlord taken appropriate steps to ensure the effective operation of communication channels between its own teams and the resident throughout the repairs and complaints processes?

Each case will be considered on its own individual facts and circumstances. This guidance note is not intended to restrict our investigations or fetter our discretion.

 October 2021