HM Insights

Why social landlords may have to factor in a tweak to their complaints procedure

When it comes to handling complaints from homeowners, what procedures do registered social landlords (RSLs) who are also registered property factors need to follow?

A recent decision of the Homeowner Housing Panel has highlighted a tension between, on the one hand, the template complaints handling procedure (CHP) which RSLs must operate in order to comply with the requirements of the Scottish Public Services Ombudsman (SPSO) and, on the other, what that procedure must contain in order to meet the requirements of the Code of Conduct for registered property factors.

This Code of Conduct, published by Scottish Government pursuant to the Property Factors (Scotland) Act 2011, provides that a registered property factor must have a clear written complaints resolution procedure. In particular, "This procedure must include how you (i.e. the factor) will handle complaints against the contractors".

Cutting the grass

In the case, which involved Dunbritton Housing Association (case reference HOHP/PF/14/0106) the homeowner's complaints related to the cutting of grass within a housing estate by a contractor employed by Dunbritton. Dunbritton's CHP was, word for word, in the form required by the SPSO (this being the model CHP published by the SPSO for use by registered social landlords, including the "customer-facing" version which explains for the benefit of customers what can be complained of and how the RSL will handle and seek to resolve complaints).

This customer-facing CHP does make clear that service users can complain about things like failure to provide a service, or standards of service, and also confirms that a complaint can be about "someone working on our (i.e. the RSL's) behalf" - but it does not include any explicit reference to "contractors".

The verdict

At the Panel hearing, while it was submitted by the Association that its CHP did comply with the Code of Conduct in that a complaint against a contractor was a complaint about a service being provided on behalf of the RSL, and that this would be handled by following the procedure in exactly the same way as with any other type of complaint, the Panel decided that the procedure was not sufficiently clear in relation to the handling of complaints against contractors, and so the Association was held to be in breach of paragraph 7.1 of the Code.

The implications

This decision is likely to have implications for most Scottish RSLs, since all RSLs are under the same statutory duty to implement the SPSO's model procedures. This duty arises by virtue of section 119 of the Public Services Reform (Scotland) Act 2010, which introduced sections 16A-G to the Scottish Public Services Ombudsman Act 2002. In particular, section 16B empowers the Ombudsman to publish model CHPs for listed authorities (RSLs being classed as listed authorities). By virtue of section 16C the Ombudsman must notify a listed authority if a published model CHP is relevant to that authority, in which event the authority must then ensure that it has a CHP which complies with the model. Thereafter, the authority may only modify the application to it of the model CHP with the Ombudsman's express consent.

So, does this mean that, if a RSL proposes to amend its CHP in order to ensure compliance with the requirements of the property factors code of conduct, it must first obtain the Ombudsman's consent to the proposed new wording?

Looking at the terms of the relevant legislation, express consent is probably not required – the consent is required in order to modify how the model CHP applies to the organisation, which is different to a proposed amendment to the detailed wording of the procedure itself, rather than to its application. Such an interpretation is also consistent with other aspects of the legislation – the basic obligation is to have a CHP which complies with the model CHP and not necessarily to adopt the actual model as the organisation's own procedure. Similarly, section 16D allows the Ombudsman to declare that an authority's CHP does not comply with the applicable model, which suggests that what is important is the implementation of the principles which underpin each model, rather than slavishly following it word for word.

What you need to do

Accordingly, for those RSLs that have adopted the SPSO's model procedure on a word-for-word basis – and who could blame them if they had decided that this was the easiest way to ensure compliance with the ombudsman's requirements? – a minor tweak to their published procedures is recommended to make explicit the fact that the CHP can be used by service users to make complaints against contractors. Otherwise, the risk is that any applicant to the HOHP will be able to argue that the RSL factor is in breach of the code of conduct.

Derek Hogg acts on behalf of many Registered Social Landlords (RSLs), local authorities and other public bodies in Scotland with particular emphasis on governance, regulatory and constitutional advice. If you would like more information on this subject please contact derek.hogg@harpermacleod.co.uk or call 0141 227 9297.

This commentary is also only intended to be of general interest and does not represent legal advice.