Decision : Not upheld
Decision date : 07 Jan 2019
The Ombudsman's final decision:
Summary: Mrs X complained that after a data breach, the Council refused to waive the repayable discount on her property which she bought under the Right to Buy scheme. There was no fault in the Council’s actions.
- Following a data breach, Mrs X complained the Council refused to accept there were exceptional reasons why she and her family needed to move. As a result, the Council would not waive the discount repayable on her property which she bought under the Right to Buy scheme.
- Mrs X says this has caused her distress and she and her family fear for their safety.
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)
How I considered this complaint
- I spoke to Mrs X and considered the information she provided.
- I requested information from the Council. This included the documents related to the data breach, the complaints correspondence and other documentation relating to Mrs X’s request that the Council waive the repayable discount on her property.
- I considered the Housing Act 1989, the Ombudsman’s Guidance on Remedies and the Council’s housing policy.
- I wrote to Mrs X and the Council with my draft decision and considered their comments before I made my final decision.
What I found
- Under the Housing Act 1985, a secure council tenant is allowed to buy their council home at a discount on the market value of the property.
- If the person then wants to sell the property within 10 years of buying it, they must first offer it to their old landlord or another social landlord in the area.
- If the property is sold within five years, then some or all of the discount must normally be repaid. The amount repayable decreases each year from 100% repayable if the property is sold the first year after purchase to 20% if sold five years after purchase.
- The Council’s policy states that if the owner would face hardship by having to repay the discount, and their circumstances justify it, the Council may decide not to ask them to pay some or all of the discount.
- Mrs X and her family live in a small block of Council owned flats.
- Since around June 2015, Mrs X and other tenants have complained of anti-social behaviour (ASB) from the flat opposite which is occupied by Family T. The Council asked the tenants to keep diary sheets to log any ASB incidents.
- In September 2015, Mrs X submitted a right to buy application. The Council made her a formal offer in December 2015 and the sale was completed in May 2017.
- Mrs X recorded and submitted ASB incident reports about Family T for the periods June to November 2015, February to April 2018 and June to July 2018. The incidents centred around littering of communal areas, arguing and shouting in the flat, slamming of doors and drug use in the communal areas. In her 2015 diary sheets, Mrs X said a member of Family T had been caught by the police selling an item belonging to her after a burglary which took place at her flat.
- In July 2018, the Council hand delivered a letter to Mrs X. This advised her that the Council had breached data protection regulations by submitting some of the ASB diary sheets completed by tenants to Family T during a court case. The Council said it had informed the police about the breach so that if there were any further incidents of ASB by Family T at the flats, these would receive a rapid response from the police.
- Mrs X complained to the Council in July 2018 and said she was fearful for her safety and her family’s. She asked the Council if it would buy back their flat and waive the discount repayment as they would be moving within two years of purchasing it under the right to buy scheme.
- The Council responded in August 2018. It said that since the data breach, there had been no reported incidents to the police or the Council about ASB by Family T against any of the tenants in the block of flats. It stated that it would buy back Mrs X’s property but would not waive the repayable discount which was around £60,000. The Council advised Mrs X that if she wanted compensation for any non-material damage or distress caused by the breach, she should make a separate claim. The Council also stated it had reported the breach to the Information Commissioner’s Office.
- Mrs X remained unhappy and complained to the Ombudsman. She said that the Council had offered to move the other tenants in the block of flats and one family had already taken up this offer. She said the only reason the Council had not made the same offer to her family was because they had bought their property and were not tenants.
- In its response to my enquiries, the Council said that it "did not offer to move to any of the tenants in the block but did advise that we were happy to discuss any concerns they had and how we could support them”. The Council said one family requested they be moved and because of their individual personal circumstances, it agreed to move them, even though the Council did not consider them to be at significant risk. The Council stated it had not offered alternative accommodation to anyone else in the block.
- When the Council realised there had been a data breach, it took steps to mitigate any damage. This included offering to discuss concerns with the tenants and occupiers of the other flats, reporting the breach to the Information Commissioner’s Office and working with the police.
- The Council agreed to buy back Mrs X’s flat at her request. However, it will not waive the repayable discount of £60,000 on the flat. Whether to do so is a matter for the Council’s discretion. When making the decision, it considered Mrs X’s individual circumstances, including the data breach and possible repercussions. It noted there were no further ASB reports. It concluded the circumstances did not warrant waiving the discount. This is a decision the Council is entitled to make and I will not criticise it.
- The Council has said it will consider any claim Mrs X submits for distress and other non-material harm coming as a direct result of the breach. This is a suitable action to take to help address any personal injustice Mrs X may have suffered from the data breach. If Mrs X is unhappy with any offer made by the Council, or if it will not make her an offer, she can return to the Ombudsman.
- There was no fault in the way the Council made the decision not to waive the repayable discount on Mrs X’s property. Therefore, I have completed my investigation.
Investigator's decision on behalf of the Ombudsman