Decision : Not upheld
Decision date : 29 Aug 2018
The Ombudsman's final decision:
Summary: Mr X has complained the Council wrongly led him to believe he could purchase his home under the Right to Buy scheme. He is also unhappy with how the Monitoring Officer dealt with his complaint about a local councillor. There is no evidence of fault by the Council.
- Mr X is unhappy the Council has refused his application to purchase his home under the Right to Buy (RTB) scheme. He says the Council wrongly led him to believe his home was eligible to buy and he would not have applied to live in the property had he known it was not.
- Mr X has also complained about how the Monitoring Officer dealt with his complaint about a local councillor.
What I have investigated
- I have considered Mr X’s concerns about the information the Council provided about the RTB his home. I have also considered his complaint about how the Monitoring Officer dealt with his concerns about a local councillor. The final part of this statement will explain my reasons for not looking in to the rest of the issues Mr X has complained about.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
- 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)
- The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
How I considered this complaint
- I have considered all the information from Mr X and the Council, including the Council’s response to my enquiries.
- A copy of this decision was sent in draft to Mr X and the Council. I have considered the comments received in response.
- Mr X was on the Council’s housing register for many years before applying for the flat where he currently lives in 2016. Before making a bid on the property, Mr X contacted the Council as he wanted to make sure he could buy the property under the RTB scheme at some point in the future. Mr X says the person he spoke to confirmed the flat was part of the Council’s normal housing stock and he could apply to buy it from August 2017. Mr X says he applied for the tenancy on this basis.
- In 2017, Mr X applied for the right to buy his home. However, the Council refused the application. It said the flat was not eligible for the RTB scheme as it was particularly suitable for residents over 60 years old. Mr X was unhappy with this decision and argued the Council misled him. He says it gave him a leaflet about the RTB scheme when he moved in to the flat, provided an application form when he requested it and asked him for additional proof of previous council tenancy to process his application. Mr X questions why it did this if the property was never eligible for the scheme. He also believes the Council had a duty to tell him if the property was exempt from RTB.
- The Council does not agree. It says it must provide information to all tenants about the RTB their home and the leaflet it gave to Mr X about the scheme did make it clear that certain properties may not be eligible to purchase. It also says any decision it makes about the eligibility of a property is not absolute as the tenant can appeal to the Residential Property Tribunal. Therefore, it could not say with any certainty that the property was not for sale when Mr X moved in.
What I found
- A social housing tenant can apply for the right to purchase their home through the RTB scheme if they meet certain criteria. However, some properties will not be eligible. Paragraph 11 of schedule 5 to the Housing Act 1985 says that a landlord may refuse a RTB application if a property is particularly suitable for elderly residents. However, the tenant can ask the Residential Property Tribunal if the landlord is right to refuse the application on this basis.
- Mr X says this exclusion does not apply to his home and argues the Council should have told him that he could not buy the property before he applied for the tenancy. He has also argued the Council misled him and encouraged him to provide further information to support his application. However, I cannot say there is any fault by the Council in this regard. It was not unreasonable that the Council did not tell Mr X before he had applied for the RTB his flat that it was not suitable for the scheme. The Council cannot decide if a property is eligible until an application is made and the tenant does have the right to challenge any decision with the Residential Property Tribunal.
- I understand Mr X says he called the Council and it specifically told him that he would have the RTB the property. He says he would not have bid on the flat had he known he could not buy it and has now lost his position on the housing register. The Council has no record of this conversation. But says its home ownership team would not usually comment on whether someone will have the RTB their home and any advice given will be general guidance and information.
- In circumstances such as these, where both parties disagree, it will never be possible to know for certain what happened or what was discussed before Mr X applied to live in the flat. However, I am satisfied the Council did give Mr X information at the time about the RTB scheme. The booklet it provided explained who would be eligible and that some homes could not be purchased under the scheme. Therefore, I cannot say there is any evidence to show the Council misled Mr X in this regard.
- I have also considered the concerns Mr X has raised about how the Monitoring Officer considered his complaint about a local councillor. After the Council turned down Mr X’s RTB application he contacted his local councillor and asked him to look in to the matter. Mr X is unhappy with how the councillor dealt with his concerns and complained to the Council.
- Under the Localism Act 2011 the Council must make arrangements to investigate allegations that members have not complied with its code of conduct. It is for each council to decide the details of its code of conduct and how it deals with complaints about its members. However, usually a Monitoring Officer will investigate the complaint and decide if the code has been breached. The Ombudsman does not offer a right of appeal against a council’s decision on complaints that a councilor has breached the code of conduct. But we can consider if there was fault in the way the complaint was considered.
- In this case, I am satisfied the Monitoring Officer did properly consider Mr X’s concerns in line with the Council’s policy. Mr X says the Monitoring Officer did not look at the points he made and instead just took the councillor’s word for what happened. However, I can see the officer did address Mr X’s concerns in their report before deciding the code of conduct had not been breached. Therefore, I cannot say there is any fault. I understand Mr X may not agree, but this was a decision the Monitoring Officer was entitled to make and the Ombudsman cannot question the decision unless it was tainted by fault.
- There is no fault with the information the Council provided to Mr X about the RTB scheme. There is also no fault with how the Monitoring Officer dealt with his complaint about a local councillor.
Parts of the complaint that I did not investigate
- I have not investigated Mr X’s complaint about the Council’s decision to refuse his RTB application. This is as he has appealed to the Residential Property Tribunal and the law says the Ombudsman cannot look at matters considered by the tribunal.
Investigator's decision on behalf of the Ombudsman