Decision : Upheld
Decision date : 19 Oct 2018
The Ombudsman's final decision:
Summary: Mr X complains the Council would not start his second Right to Buy process until he had sent them details of his finances. There was fault by the Council in how it dealt with Mr X’s first Right to Buy application. It was fault that the Council did not reply to Mr X’s queries about the maintenance and service charges for the property. That fault caused Mr X an injustice requiring a remedy. Mr X did not submit a valid second Right to Buy application. It was not fault by the Council which stopped that application progressing.
- Mr X’s complaints are about his applications to buy his home under the Right to Buy (RtB) scheme. Mr X’s first application to buy the flat was in October 2016. He tried to make a second application in November 2017, but the Council decided this was not valid and did not process it.
- Mr X complains:
- the Council failed to give the appropriate information under the RtB legislation for the expected costs of service charges for the flat;
- the Council did not explain to him if he could apply to buy the Freehold on the property, rather than it remaining as Leasehold;
- the Council did not reply to his request to tailor the service charges to his specific needs;
- before his second application, the Council unfairly demanded from him details of his finances which he should not have to provide at that part of the Right to Buy process;
- officers would not let him record or video their meetings or contacts with him;
- the Council has failed to provide the information he wanted to see after making a Freedom of Information (FOI) request.
- his Right to Buy application to be reopened and processed;
- to deal with staff who will give him clear responses;
- the Council to give him the information about projected maintenance and other costs for the property, and on whether he can buy the Freehold;
- a financial remedy.
What I have investigated
- I have investigated issues a) to d). I explain at the end of this statement why I have not investigated issues e) and f).
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- As part of the investigation, I have:
- considered the complaint and the documents provided by the complainant;
- noted the enquiries made of the Council by the Ombudsman’s Assessment team, and considered the Council’s reply;
- issued draft decisions to Mr X and the Council, inviting their comments, and considered the replies received.
What I found
- The RtB scheme is primarily governed by the Housing Act 1985. The Act sets down the required stages for councils to follow where a tenant asserts their right to buy their rental property. The Ministry of Housing, Communities and Local Government also issues guidance to local authorities on how to carry out the RtB scheme.
- Councils are not required to have a policy on how they will carry out the RtB scheme. But they should comply with the legislation and have regard to the guidance when dealing with RtB applications.
Assessment – first application
- Mr X made his first RtB application on 10 October 2016. The Council sent him the Section 124 Notice on 20 October, which confirmed Mr X’s application had been accepted and he had the right to buy the flat.
- The Council then had a further 12 weeks to provide Mr X with the next Notice, under Section 125. That Notice is the offer letter, setting out the proposed price for Mr X to buy the property. It also contains details of the service charges and other fees to be paid once Mr X would own the flat. The Council sent that Notice on 22 December.
- Mr X had 12 weeks to respond to the Section 125 Notice. The Council says it received no reply from Mr X to the Notice.
- Instead of formally responding, Mr X emailed the Council’s general help desk on 15 February 2017. Mr X says this was in response to a visit by officers to the flat, to evaluate it. In his email, he asked the Council to clarify some of the service charges for the flat. He wanted to know what the management fee covered, and the out-of-hours service and reserve fund contribution. Mr X says the Council confirmed the email was forwarded to the RtB officer on 16 February.
- The Council says it believes the RtB officer replied to Mr X’s email on 20 February. They offered to make an appointment to meet Mr X to speak to the relevant Leasehold Officer, either by telephone or in person, so they could explain the estimated service charges for the property. As Mr X had used two different emails, and had contacted the Council’s general help desk email rather than the RtB officer’s email, the Council says Mr X may not have received a reply.
- The Council did send a Section 125E letter to Mr X on 16 March 2017. This advised Mr X that he had 28 more days to respond to the offer notice. The Council says it received no reply from Mr X. Officers wrote to him on 13 April to confirm they had cancelled his RtB application, because he had not replied.
- Mr X then emailed the Council’s general help desk again on 23 April, asking why he had not received a reply to his 15 February email. The council replied on 9 May to say Mr X’s emails would be forwarded to the RtB officer at the Council to reply. Mr X then complained to the Council.
- Once a RtB application has started, there are set timetables for the next stages. The Council gives the offer, and the applicant either accepts it within the timescale or withdraws from the process. National government guidance states that if someone wants to question any aspect of the RtB offer letter, other than the property valuation, the applicant should contact their landlord. If the applicant and the landlord cannot agree about something, the applicant has the right to go to the county court to get a ruling on it.
- I find the Council should have responded to Mr X’s 15 February email requesting clarification of the service charges on the property. From the evidence I have seen, I cannot say the Council responded to Mr X’s 15 February 2017. It was fault that they did not do so.
- I have considered what injustice this fault caused to Mr X. Mr X contacted the Council about a matter which might have led to a disagreement with the Council about the terms of their Section 125 offer. But as the Council did not reply to him before closing the application, Mr X did not know whether he and the Council had a disagreement about the service charges, which was avoidable uncertainty. The Council’s inaction contributed to Mr X not being able to take the matter to court.
- However, I find Mr X did not act in his own best interests here. Mr X could have chased the matter with the Council after 15 February 2017, if he did not receive the Council’s reply. Mr X was aware from the 22 December 2016 letter that there was a deadline for him to agree to the Section 125 offer. I find Mr X’s own inaction contributed to him not being able to take the matter to court.
- If Mr X had known that he and the Council disagreed about the service charges, I do not consider I can find on balance that he would have taken the matter to court. Mr X would have had to pay to take that route and it is not now possible to say whether he would have paid to go to court. There are too many unknown variables, including the potential savings on service charges, for me to find on balance that Mr X would have taken legal action. I also do not consider I can know what the outcome of any court action might have been.
- Mr X says he now intends to take this matter to court. If that is the case, once it is listed at court, it is outside the Ombudsman’s jurisdiction. The Ombudsman cannot investigate something which is the subject of legal action.
- Mr X says he did not receive the Council’s reminders about the deadline to reply to the Section 125. The evidence shows the Council met the timescales and served the proper notices needed by the Housing Act 1985. The Council’s letters to Mr X show his correct home address. It is not fault by the Council if Mr X did not receive those letters and notices.
- Mr X quotes caselaw which says documents should be served on someone in a way which a reasonable person would use to draw the recipient’s attention to it. I do not agree with Mr X’s assertion that this is a misinterpretation of the matter. I consider the Council posting the Section 125E Notice to the address Mr X had given them is in line with the expectations of that caselaw, and was not fault.
- Mr X considers that if he is required to hand-deliver or send correspondence by recorded delivery, the Council should too. But there are no grounds for me to say the Council using regular post to serve its Notice was fault. The government’s RtB guide for applicants is for them to lodge an application in person or by recorded delivery. But if Mr X had sent a valid RtB application by post, without sending it recorded delivery, and it safely reached the Council, that would be an acceptable application. There is no requirement on applicants to send all letters recorded delivery. But they may decide to follow the guidance and do so, to give them added peace of mind.
- Mr X complains the Council did not explain to him when he made the first application whether he could apply to buy the Freehold on the property, rather than it remaining as Leasehold.
- The Council explained to Mr X, in its 8 March 2018 complaint response letter:
‘As Portsmouth City Council is the landlord, they are the freeholder. The council do not share this. As you are potentially looking to buy a flat within the council’s block you will, therefore, be a leaseholder and the council will be your landlord’.
- I find Mr X has received the Council’s answer to this issue. He may not like that response, but it is not fault for the Council to give a response Mr X does not like.
- Mr X has asked the Ombudsman to answer whether he can buy the freehold of his property. I cannot answer that question. The Council owns the freehold and it is for the Council to decide whether to sell it to Mr X or anyone else.
Assessment – second application
- Mr X sent a second RtB application to the Council on 5 December 2017. The Council has refused to accept the application. Mr X says the Council unfairly refused to take the application because he did not provide financial information about how he would fund the property purchase.
- The Council says Mr X has not submitted a valid and signed application form. Part of the form, which Mr X scanned and emailed to the Council, is illegible. Mr X has not physically signed it with his full name, but using just his first name, which is an electronic signature. I have seen a copy of Mr X’s submitted second application. I have also seen a copy of the email Mr X sent to the Council, with the forms as attachments. This shows Mr X sought to submit his second application by email.
- To comply with RtB processes, the national government instructions say:
‘When you have completed this online form, save and print it out, sign in all the relevant places and take it or send it by recorded delivery to your landlord’.
- Email is not acceptable as the form needs to be physically signed on paper copies, and the property’s owner needs a copy of the potential buyer’s signature on their file. Mr X argues the government instructions do not rule out other ways to serve the notice. I disagree. The instruction is clear that the form needs to be printed on to hard copy, then signed and submitted to the landlord. That means Mr X’s chosen method of email is not valid.
- Mr X further argues his electronic signature on an emailed form should be accepted as a valid written format for the application. Mr X says that under the 1978 Interpretation Act, his application sits within the definition of what is ‘writing’. I find the Council is entitled to rely on the specific RtB requirement, as set out in national government’s documentation, that the application must be printed out and physically signed.
- The Council asked Mr X to re‑submit his RtB application in an acceptable format. The Council has also offered to meet with Mr X on several occasions to help him complete the form correctly. I do not find it was fault for the Council to not accept Mr X’s second RtB application, and start the RtB process, in these circumstances.
- Mr X says he has made a further RtB application in August 2018. If Mr X considers the Council is at fault in the way it deals with his application before accepting it as valid, that would be a new complaint. He would need to complain to the Council first before bringing that new complaint to the Ombudsman.
- The Ombudsman cannot intervene in the RtB process. If Mr X believes the Council delays at any point in that process, for example in issuing the Section 125 Notice, the legislation provides a remedy to him for such delays. He can serve delay notices on the Council, under Section 153 of the 1985 Act, which would allow him to claim back costs for the delay period. This provides Mr X with the proper route to get his redress for any delay by the Council in the RtB process. He should use that route if he believes the Council delays during any fresh RtB application he makes.
- Mr X will only meet or speak with officers unless they agree to him recording the conversations. I address this point below but if Mr X considers he cannot deal with the Council and the RtB process himself, he may wish to seek help from a legal or other professional representative to make the application on his behalf.
- Given my finding that it was not fault for the Council to not accept Mr X’s application, Mr X’s complaint that the Council refused to process his second RtB application because of the lack of evidence of his finances falls away. Even if Mr X had given the Council all the financial information it asked for, they would not have processed his second application, because it was not submitted in a valid form.
- Mr X says it took the Council 5 months to tell him that his 5 December 2017 emailed RtB application was not valid, which he considers was not acceptable. This is a new issue because it is not one Mr X raised in his original complaint to the Ombudsman.
- However, I have considered the evidence I have on file. In response to Mr X’s complaint, the Council wrote to him on 8 March 2018. The letter told Mr X:
‘During my investigation it has come to light that you have submitted a new Right to Buy request, and that the relevant paper work was sent to you on 4th December 2017. If you would like to continue with this new application then please complete and return the paperwork. I have enclosed a copy of this for you”.
- While the Council did not indicate Mr X’s application was not valid because it had been emailed and not properly signed, the Council sending Mr X the forms again should have indicated to him there was a problem.
- I am not coming to a formal view on this as the Council has not had opportunity to comment on it, as it was raised by Mr X during the course of my investigation. But based on the information I have seen, I consider it is likely we would conclude the Council should have responded to Mr X’s emailed formal application and explained it was not valid. But Mr X is aware of the formal process and timescales involved so should have known when he did not receive the S124 notice that there was a problem. I do not, therefore, consider this likely failing by the Council is of significance.
- I recommended the Council apologise to Mr X for the injustice of uncertainty caused to him by its fault in not replying to his 15 February 2017 email. The Council should send this apology to Mr X within one month of my issuing my final decision statement. The Council has agreed to this remedy.
- It was fault for the Council to not reply to Mr X’s 15 February 2017 email asking for clarification of the relevant service charges. The Council’s fault caused him uncertainty about its view on his querying of the charges, and contributed to him missing an opportunity to refer the matter to court.
- I consider the Council’s agreement to the above recommended actions resolves the complaint. I have completed my investigation.
Parts of the complaint I did not investigate
- I am not aware of any legal or other duty on a council officer to agree to be recorded by a member of the public. If someone asks to record a meeting or telephone call, it is for the individual officer to decide whether to agree to it. Given that officers have that discretion to choose, it is not fault for an officer to refuse to be recorded.
- Mr X says the Council has used data protection as a reason for not allowing him to record meetings or conversations with officers. Mr X has sent an August 2014 press release which shows national government rejected data protection as a valid objection to people recording meetings. But that press release is about recording public council meetings, not about recording one-to-one meetings people have with council officers. Mr X does not want to record public meetings. He wants to record ones he has with specific officers, which are not held in public. The August 2014 document is not relevant and does not alter my view.
- Mr X has sought and continues to seek a significant amount of information from the Council about its past, present and planned future management of the block of flats where he lives, and the wider estate. He does not consider the Council has sent enough information to satisfy his queries, before he makes a major investment through RtB. He made an FOI request to get all the information he wanted but remains dissatisfied with the Council’s reply.
- The Information Commissioner’s Office (ICO) is the body created by national government to consider complaints about authorities’ use of data. If Mr X is unhappy with the response the Council gave to his FOI request, that would be a matter for him to refer to the ICO. The ICO is the organisation best placed to assess whether the Council’s FOI response complies with the relevant data laws and guidance.
Investigator's decision on behalf of the Ombudsman