The PSOW

For various reasons over the last 30 years (more or less), I have been taking an interest in the administrative justice space that affects housing.  That includes stuff around local authority internal reviews (or appeals as they were back then) through to alternative dispute resolution and other techniques of handling grievances and complaints.  In the last few years, the Housing Ombud in England has been a really interesting object of study because of the massive increase in their jurisdiction, and their ability to act as a quasi-regulator.  The idea that an ombud can act as a regulator is one that has developed as a result of the move away from their traditional “small claims” type role to setting and enforcing standards (see this interesting article about the Financial Ombud – h/t Tony Prosser).  That is quite an interesting approach and needs to be seen across the rest of the regulatory space (to use that term familiar in regulatory studies).  Perhaps in response to concerns expressed by the legal profession (or for other reasons), the English Housing Ombud seems to have increased the compensation given in small claims matters which broadly appear to be commensurate with what a court might order.  But, the point is that it is pretty active.

The Public Services Ombudsman for Wales appears to be a rather different animal, with different powers – or perhaps the way it exercises them is different.  It investigates individual complaints and has power to make investigations on its own initiative broadly where there is systemic maladministration or service failure.  In terms of individual complaints, the PSOW can’t investigate matters which are subject to a Tribunal’s jurisdiction or have a remedy by way of proceedings in a court of law (s. 13(1), PSOW Act 2019).  This reflects a rather big issue/hole in the PSOW jurisdiction.   However, there is a get-out in that the PSOW does have jurisdiction if “the Ombudsman is satisfied that, in the particular circumstances, it is not reasonable to expect the person to resort, or to have resorted, to the right or remedy.”  Given the issues over access to justice in Wales and the lack of legal aid for disrepair (for example), there would be scope for the PSOW to investigate (perhaps?).

In terms of own initiative investigations, it has no live ones, and its last and only housing one on homelessness was back in 2021 (there is a closed consultation on carers’ needs assessments).  It does thematic reports.  This blog previously covered their thematic report on damp and mould – which was noted to be very different from that of the English Housing Ombud in the range and specificity of their recommendations.  On this front, there seems to be only limited evidence that the PSOW is using its role as a quasi-regulator setting and enforcing industry standards.

In terms of individual small claims complaints, their last annual report indicates that, despite increased publicity, “We received 380 complaints about Housing Associations. This is a 9% increase from the previous year and a 47% increase from 2019/2020. Repairs and maintenance still make up nearly half of the complaints we receive about Housing Associations, remaining at 48% for a second year.”  Further, it seems that all PSOW interventions with housing associations are resolved early at the assessment phase (p 23).  Most now operate the PSOW’s model complaints policy.  This approach to individual complaints means that, when you search of individual complaints using the search term “housing”, the outcome is “early resolution”.  I guess that perhaps reflects the fact that most such complaints are justiciable matters (although see the get-out above).  And, awards of compensation are pretty derisory as a result – so, for example, consider the following reports (I know nothing about these complaints beyond what is written on the PSOW website)

Bron Afon –  this is on the PSOW web page and concerns damp and mould.  It appears that the complaint was that Bron Afon “had failed to address [the complainant’s] concerns regarding the damp in her property and the repairs needed”.  And, properly, Bron Afon apologised and said that it would provide a complaint response within five weeks, offering £75 compensation.

Valleys to Coast – this one concerns repairs not being done to this tenant’s roof and a further grievance about response to the tenant’s complaint.  The PSOW decided to settle this one without an investigation on the basis that Valleys to Coast apologised, did the repairs and paid £300 “financial redress for the avoidable delays, lack of communication and inconvenience caused”.

That early resolution approach of the PSOW chimes with what I have previously written about the co-operative approach in Wales.  Organisations do want to work with each other, and the adversarialism which permeates English housing seems mercifully absent.  We also do not know if these tenants are pursuing a claim against the RSL in the courts.  However, I cannot help thinking that, in the absence of further information, the English Housing Ombud might have been more hands-on and would be more compensation focused.  This is just a hunch on my part.  It harks back to my anxiety expressed in a previous post about housing justice that decisions are changed only when challenged.

We don’t know if these complainants had taken legal advice or not, or even if that was something that they might have discounted or thought about or that they brought claims; but, I can’t help thinking that the PSOW might consider thinking about equalising their awards with what Courts might award in similar circumstances and taking on these cases.  After all, it would, in theory, be cheaper and proportionate for the public purse, and housing disrepair claims, by their nature, involve some degree of delay and failure to respond by an RSL/landlord.

Don’t shoot the messenger here.  I am not advocating that we should litigate everything or that there is no role for the PSOW or that the PSOW should change its practice of early resolution.  However, I am raising the question about what the proper approach should be to redress of grievance in housing more generally.  This question was raised by a Justice report and there was excellent work done by the administrative justice/housing scholars, Sarah Nason, Helen Taylor and Huw Pritchard (see here and here).  That research raised questions about the length of complaints processes and the problem of exhaustion (see para 8.14), and is definitely worth reading.  But, my questions remain, and, to use the metaphor, the surface could do with being scratched …