Calderdale Metropolitan Borough Council (18 000 703)

Category : Environment and regulation > Other

Decision : Not upheld

Decision date : 10 Jan 2019

The Ombudsman's final decision:

Summary: Mr B complains about the Council’s decision not to pay a grant for flood defence works to his property that the Council initially agreed to pay. Mr B says because of the Council’s decision he had to pay for the works himself. The Council’s decision not to pay the grant was not affected by fault. So, we have completed our investigation.

The complaint

  1. The complainant, who I will refer to as Mr B, complains about the Council’s handling of his family’s applications for grants for flood defence works to two properties on a farm. Mr B says the Council agreed to pay grants for both properties before later deciding, after Mr B had arranged for the works to be undertaken, to only pay for the works to one of the properties. Mr B says the Council has wrongly decided that one of the buildings at the farm is not a separate property which is eligible for a grant. Mr B also complains that the Council provided inconsistent information on the required timescale for the works. Mr B would like the Council to: apologise; reimburse the money he spent undertaking the works; and, honour its commitment to pay for flood defence work for both properties.
  2. Mr B also complains that the Council has failed to regularly clean road gullies next to the farm that has resulted in flooding. Mr B would like the Council to clean the road gullies to prevent further flood incidents.

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What I have investigated

  1. I have investigated Mr B’s complaint about the Council’s handling of his grant application.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I have considered Mr B’s complaint and the supporting information he sent. I have made enquiries to the Council and have considered the information provided by the Council in response. I have also shared a draft version of this statement with Mr B and the Council and have considered the comments I have received in response.

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What I found

  1. The Council operated a scheme to provide grants for owners of residential properties and business premises which were flooded during the winter storm of December 2015. The grant was to help cover the costs of works to make properties more resilient against future flooding. The grant would cover 100% of the costs for the flood resilience works in addition to the surveyor’s fees – up to a maximum of £5,000 per property.
  2. The terms of the scheme are set out in the guidance notes which are provided with the application form for the grant. The guidance notes set out the criteria that must be met for a grant to be awarded. The guidance says the applicant must provide proof of ownership with one of the following:
    • Their lender’s latest mortgage statement OR
    • A copy of their title deed OR
    • Land Registry title OR
    • Provide a lease with repair obligations and the lease holder’s written consent.
  3. The guidance notes also say:
    • A member of staff from Calderdale Council may get in touch to arrange a visit to your property to check the work has been carried out in accordance with your application and conditions of the grant.

What happened

  1. Mr B’s brother put in a grant application to the Council for flood resilience works to his property in January 2017.
  2. Next to Mr B’s brother’s property is a farm building which has been converted to residential accommodation. Mr B says this building is in his ownership and has been used as separate residential accommodation for several years.
  3. Mr B put in his own application to the Council for a flood resilience grant because his property was also affected by the December 2015 flood. Mr B says the building he owns and his brother’s home are separate properties. Mr B provided the land registry entry for the land in his ownership. The land is not given a property name in the description of the entry but is described as ‘land on the South side of [name of the road, and village]’.
  4. In early February the Council approved both grant applications for the maximum grant amount of £5,000 for each application.
  5. In early August the Council contacted Mr B and his brother separately to say the deadline for completion of the flood resilience works and for invoices to be provided to the Council was 30 September.
  6. In mid August the Council received an invoice for flood resilience works. The Council says it was not clear where the product for Mr B’s grant application had been installed so it arranged a visit to the site. The Council says before the visit it tried to identify the location for Mr B’s grant application, but the address for Mr B’s application was not recognised in its own right. The Council’s notes say the address provided by Mr B was not listed for council tax.
  7. A Council officer visited the site and spoke to Mr B’s father. The officer asked Mr B’s father to provide further evidence to show Mr B’s application was for works to a separate residential address, which was not part of Mr B’s brother’s property. The officer later confirmed this request in an email. The officer suggested providing evidence such as a council tax bill or mortgage statement. The officer added that if evidence could not be provided the Council would not be able to reimburse Mr B for any works undertaken.
  8. Mr B says at the visit the officer said the rest of the drainage work needed to be completed by the end of August. Mr B says this was a target that could not be met but in further correspondence with the Council he found out he had more time to complete the work.
  9. In October Mr B provided the Council with a gas bill to show the application property had been charged for gas usage separately to his brother’s property. The Council responded by saying this was not sufficient and a council tax bill or mortgage statement would likely be needed. Mr B said he could not provide these documents because he has no mortgage and his father, who deals with all the paperwork, is abroad.
  10. The officer responded later that month by saying he had been unsuccessful in identifying the address. The officer advised Mr B to consider whether a discrepancy had arisen regarding the property details. The officer advised Mr B to contact Royal Mail to report an incorrect or missing address, because the postcode he used may not have been formally allocated to the property.
  11. During the following months Mr B and his MP were in contact with the Council about the matter. On 5 December the Council sent an email to Mr B’s MP which said the ancillary property owned by Mr B is on the council tax system as Category 01, not in billing or banding.
  12. Mr B asked the Council to provide its published criteria for assessing grant applications and defining ‘property’. The Council responded by providing the guidance notes and application form for the scheme.
  13. On 11 January 2018 Mr B’s MP provided the Council with notices from the Valuation Office Agency and Land Registry. The letter from the Valuation Office Agency is dated 24 December 2017.
  14. The letter says the agency has altered the Valuation List by making the new entry because the property comprises a dwelling for council tax purposes and is not shown in the Valuation List. The effective date of the alteration is listed as 1 April 2017.
  15. Mr B complained to us in April 2018. We did not accept the complaint because it had not completed the Council’s complaints procedure. Mr B put in a complaint to the Council. Mr B said the Council was aware his property was rated for council tax purposes and benefited from planning permission to provide ancillary residential accommodation. Mr B complained the Council used criteria which were irrelevant and the Council was wrong not to pay the grant.
  16. In early May the Council provided its final response to the complaint. The Council did not accept it was at fault. The Council said it made considerable efforts to identity the property Mr B described in his application form. This included Royal Mail address finder, Experian Data Quality Address Lookup, and the Electoral Register. The Council told Mr B how he could register the address. The Council said it was unable to reimburse Mr B for any works undertaken.
  17. Mr B complained to us again in June and we accepted his complaint.
  18. The Council’s response to my enquiries included the following comments:
    • To date no evidence has been provided to show Mr B’s property is a separate residential address. So, it must be concluded that on the relevant date – 26 December 2015 - Mr B’s property did not exist as an individual address separate to his brother’s property, nor had it been allocated a postcode by Royal Mail. The property was not in ‘banding’ as a separate dwelling for council tax purposes on 26 December 2015.
    • The Council was only able to accept one application per property at the time of the flood. The Council approved Mr B’s brother’s application. This was the only application the Council could accept.
    • The Council is required by law to protect the public funds it administers. Although Mr B’s application was initially approved, it was later discovered that it contained misleading address information.
    • The Flood Protection and Resilience Grant Scheme has now closed.

Analysis

  1. I recognise Mr B is aggrieved that the Council has refused to pay the grant even though it approved his application. But, I find the Council was not at fault for the matters complained about.
  2. I can only consider whether there was fault in the way the Council reached its decision. Unless there was fault in the decision-making process, I cannot say the Council’s decision was right or wrong.
  3. The Council’s Flood Repair and Renew Grant scheme provided financial help for properties affected by flooding in December 2015. So, the Council was entitled to decide whether a property was in existence at the time of the flood before deciding whether to provide a grant under the scheme.
  4. After receiving an invoice for flood resilience works, the Council wanted clarification about the works which had been undertaken. I find the Council was entitled to visit the site and make further enquiries into the address provided by Mr B on his application form, before deciding whether to pay the grant.
  5. This is supported by the Council’s guidance notes for the scheme which say an officer from the Council may visit a property to check the work has been carried out in accordance with the application and conditions of the grant.
  6. Since then there has been a dispute between Mr B and the Council about whether sufficient evidence has been provided to show that Mr B’s property is a separate address which is eligible for its own grant.
  7. The Council’s guidance notes for the scheme do not include information about how the Council decides what is a property for the purposes of the scheme. It may have been helpful for the Council to have included such information in the guidance notes. However, Mr B’s situation is relatively unusual and I do not consider the absence of such guidance is evidence of fault. Also, I find the enquiries made by the Council have been reasonable and proportionate.
  8. Regardless of which name is used for the property, it has not been registered as an address with Royal Mail. I have not seen any information to show the property was registered for council tax billing in December 2015. The information from the Valuation Office Agency shows the property was only added to the Valuation List in December 2017 and backdated only to 1 April 2017. The Council was entitled to place significant weight on the lack of council tax banding in December 2015 when making its decision.
  9. It would have been open to the Council to have used its discretion to award the grant despite its concerns about eligibility. But, this was a decision for the Council to make and the Council must use public money carefully. I cannot say the Council was wrong not to award the grant.
  10. Mr B complains that the Council should have refused his application at the start if it had concerns about eligibility. Mr B says he would not have arranged for the works if he knew the Council would not pay for it. My view is the Council was not at fault for treating the application, including the address provided by Mr B, at face value. I also consider Mr B could have contacted the Council at the start to fully explain the situation regarding his property and his brother’s property, and find out if grants would be paid for both properties.
  11. Mr B also complains that the Council provided inconsistent information in August 2018 about the deadline for all the works to be completed. I have not investigated this complaint further. This is because the information provided by Mr B suggests the Council later clarified the time period for the works to be completed. Also, it appears any concerns about the deadline for the works were soon put on hold given the dispute about eligibility. So, I do not consider the alleged fault caused Mr B a significant injustice.

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Final decision

  1. The Council was not at fault for the matters complained about. I have now completed my investigation.

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Parts of the complaint that I did not investigate

  1. I have not investigated Mr B’s complaint that the Council has failed to regularly clean road gullies next to the farm which has resulted in flooding. This is because this complaint has not completed the Council’s complaints procedure. The Council should have the opportunity respond to the complaint first.
  2. Also, in effect, Mr B is complaining that flooding has taken place due to Council negligence. We take the view the courts are in the best position to decide negligence claims.

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Investigator's decision on behalf of the Ombudsman

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