Decision : Upheld
Decision date : 20 Jul 2021
The Ombudsman's final decision:
Summary: The Ombudsman found fault on Mr L’s complaint against the Council about the way it dealt with establishing whether internal structural changes were made in the flat he was buying under the Right to Buy scheme. Officers failed to keep updated records showing the internal layout when he moved in after refurbishment works. Officers also failed to consider alternative ways of establishing its layout. The agreed action remedies the injustice caused.
- Mr L complains about the way the Council dealt with his Right to Buy application and it:
- deleting emails which impacted on the progress of the application;
- wrongly accusing him of knocking down a wall;
- refusing to accept his photographs which it previously agreed it would accept;
- refusing to visit the property despite safety measures in place; and
- failing to keep an updated floor plan after renovation works that happened before he moved in 5 years ago.
The Ombudsman’s role and powers
- 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)
- 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)
Right to buy guidance
- Under the Government’s Right to Buy scheme, a secure social housing tenant can buy their home, if they meet qualifying criteria, at a lower price than market value. A discount is applied based on the length of time spent as a tenant. The law about Right to Buy is found in the Housing Act 1985.
- There is a strict procedure for RTB applications:
- The process begins with completion of an application form. On receiving the application, the Council must either accept or decline the application within four weeks.
- If accepted, the Council must make an offer called a ‘Section 125 Notice’ within eight weeks of accepting the application for a freehold property, or twelve weeks for a leasehold residence. The offer will set out the price of the property, the years of tenancy and the discount applied.
- The applicant has up to twelve weeks to accept the offer. If the applicant fails to respond, the Council will issue a reminder giving a further 28 days to reply. If the applicant does not accept, the Council may issue a notice to ‘drop’ the offer. The applicant must then re-apply if they later want to buy.
- Any disagreement with the price can be appealed within three months of the offer, via an independent valuation by the District Valuer. The applicant then has twelve weeks to either accept the valuation, issued via a ‘Section 128 Notice’, or withdraw from the sale.
- If either party disagree with the independent valuation, they may appeal to the District Valuer within 28 days of the S128 Notice.
- Once the applicant accepts an offer, the Council may send a ‘First Notice to Complete’ which gives the applicant 56 days in which to complete the sale.
- If the sale does not complete within 56 days, the Council may issue a ‘Final Notice to Complete' allowing a further 56 days, or longer if specified. If the applicant does not complete the sale within the timescales, the Council may cancel the application.
- The Ombudsman can investigate complaints about delay in the process. For example, if the Council has delayed amending plans when there was clearly a mistake. This may arise when there are disputes over boundaries. The Ombudsman may uphold a complaint where it is clear the Council took too long to resolve a dispute.
- When a council delays a sale, the applicant can complete a ‘Notice of Delay’ (RTB6) form and issue it to the Council. If the Council fails to act within one month, or does not serve a counter notice, the applicant may serve an ‘Operative Notice of Delay’ (RTB8) form. After serving this, the sale price may be reduced by the amount of rent paid during the period of delay. We expect complainants to have used this process before we investigate a complaint.
- As above, there are set timescales for certain parts of the RTB process, and an applicant can serve an RTB6 if those timescales lapse. The guidance ‘Right to Buy: a guide for Local Authorities’ also advises, “if the tenant decides to go ahead you [the Council] have to complete the sale of the property as soon as all the details have been settled. There is no set time limit for this, but the tenant can use the delay procedure if they think your delays are generally holding up the purchase”.
- Once the applicant serves an RTB8 notice, the guidance says “… rent paid during the delay period will be treated as an advance payment towards the RTB purchase price. This does not happen automatically; the tenant must continue to pay rent and any amount relevant to the delay will be deducted when the sale is completed…. The refund is calculated from the date of their operative notice of delay (RTB8) and ends when the delayed action is taken”.
How I considered this complaint
- I exercised discretion to investigate Mr L’s complaint because he could have served a Notice of Delay on the Council. By the time Mr L complained to us, the sale was completed
- I considered all the information provided by Mr L, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent him. I sent a copy of my draft decision to Mr L and the Council. I considered their responses.
What I found
- Mr L has lived in the flat he rents from the Council for several years. In January 2019, he sent the Council his Right to Buy application and in April, the Council sent him its offer notice. The Right to Buy scheme allows most council tenants to buy their council property at a discount if eligible.
- In June, he sent a letter to the Council appealing its market valuation of his flat. As the Council failed to respond, 2 months later he sent it another copy. In response to my enquiries, the Council accepts he sent the earlier email and can only conclude it was accidentally deleted or there was a system failure delivering it. The Council passed his request to the Valuation Office Agency.
- In October, the Council sent Mr L’s solicitor the draft lease documents which included a layout of the property.
- In early 2020, Mr L’s solicitor queried the plans received from the Council which showed a wall not present between the kitchen and living room. The Council asked officers to investigate this and provide amended plans. Mr L claims he had not removed the missing wall. In addition, he said none of the other flats in his block have a wall in this location either. He believes the Council should have updated its records, including the floor plan for his property, after major renovation works it did before he moved in.
- By now, the country had gone in to national lockdown because of Covid-19 which meant restrictions on visiting properties.
- The Council’s records show:
- March: Mr L’s solicitors contacted the Council saying the lease plans were different to the actual layout of the property. The Council’s plans showed a wall where there was no wall. Mr L was still waiting for a mortgage offer. An officer would review the plans but would need to inspect the property.
Another officer looked at a few other lease plans from the same block and noted the drawing provided by Mr L seemed correct but, they were laid out the other way round to his flat. At the end of the month, the country went in to lockdown because of Covid-19. The Council stopped all essential/non-essential repair works and would only carry out emergency repairs, for example. No surveys or inspections were done without the consent of the head of department.
- April: The Council amended the plans and removed the wall. The officer did so because, ‘a visit could delay this for an unknown length of time due to the current movement restrictions’. The amended plans could not be agreed until an inspection.
An officer raised the possibility of asking Mr L to send photographs of the layout.
- May: The Council’s solicitors asked what was happening with site visits.
- June: Mr L’s solicitors chased the Council about progress and were told officers could not visit but needed to visit to confirm the layout of the flat. Towards the end of June, the Council started to carry out some essential repair jobs.
- August: Mr L’s solicitor again chased the Council about site visits. The Council replied saying there was no change to its ability to do them. Mr L complained the Council had not been in touch to ask for photographs of the internal layout of the property despite raising this 4 months earlier. He asked whether a video, photographs, and/or him waiting outside the property while an officer went in were options. An internal Council email asked for an officer to visit.
The same month an officer made internal enquiries with officers involved in letting the property to Mr L in 2015. Mr L had complained to them about the property’s condition before moving in. The officer asked if they recalled the layout and this wall.
- September: A manager spoke to Mr L and agreed there was no evidence he removed a wall. The layout was the same as other flats in the block. The Council sent amended plans to his solicitor.
The same month, the Council responded to Mr L’s complaint about how it handled the property layout. It accepted it did not look at other ways of confirming his property layout, such as checking its records when it let the property to him or contacting other staff who might have been aware of the layout when he moved in. It only acted to do this when he suggested it in August. It also accepted it failed to keep updated plans following works that took place in 2015. Had it kept them, the issue of the layout could have been resolved promptly.
It did find he experienced a, ‘considerable delay whilst we confirmed the layout of your home’. The delay was about 6 months. It accepted the application was unnecessarily placed on hold for an extended period pending a site inspection which was not actually required in the end.
The Council apologised for the stress, the inconvenience the delays caused, and for the way it handled the layout issue. It offered to pay him £100.
- October: The Council responded to Mr L’s further complaint and his claim for compensation of more than £22,000. It found no evidence of deliberate delay but, accepted while it was not possible for his solicitors to receive the amended plans before the end of April, it did delay the process. The Council agreed to pay £1,831 based on the rent he paid from June to September (£128.21 a week x 14 weeks and 2 days). The Council calculated this based on any award he would have received had he served a notice of delay under the Right to Buy process. The rent refund was shown on the completion statement for the sale of the property which took place later that month.
- In response to my enquiries, the Council confirmed there had been no layout change works to the property before it was let to Mr L. Officers usually take photographs but, these were unavailable. It would not remove walls as part of re-letting a property.
- As a result of the delay, Mr L claims he took time off work, would have paid his mortgage off sooner, incurred legal costs, suffered stress, sought additional advice costing £500, and suffered abuse from staff. Despite inviting him to send me evidence of the costs he says he incurred, Mr L failed to do so. Nor did he provide evidence of any abuse.
- The government set out in legislation a statutory process for applicants to challenge delay in the RTB process and seek financial redress in the form of rent reimbursement. This is deducted from the purchase price of the property on completion of the sale.
- The purpose of compensation awarded via the statutory scheme is two-fold: to ensure tenants are not paying high rent payments for longer than necessary due to delay, and so they can begin making mortgage payments without delay to reduce the mortgage term and increase equity in the property.
- I make the following findings on Mr L’s complaint:
- Complaint a): There is no evidence showing why his initial email was no longer in the Council’s email inbox. As it accepted, it could have been because it was accidentally deleted. Alternatively, it could have been due to a delivery problem. In these circumstances, I am unable to say what happened to this email or why. In the absence of clear evidence, I cannot make a finding of fault against the Council.
- Complaint b): I found no fault on this complaint. The Council was correct to clarify whether the wall existed or not. There is no evidence to support Mr L’s claim of officers accusing him of removing the wall although I can understand why he felt that way. The Council needed to investigate whether the wall originally existed and if it had, when it was removed.
- Complaint c): I have seen no evidence of the Council refusing photographs offered by Mr L.
- Complaint d): I found no fault on this complaint. From the start of April, the country was placed in lockdown. Regions were then placed in various tiers restricting movement, including entering other people’s homes. The Council had to balance the restrictions, as well as the health and safety risks to its officers and to Mr L, against visiting to inspect his property.
- Complaint e): I found fault on this complaint. As the Council accepted, had it kept proper records about the floor plan and works done when the property was empty before Mr L moved in, the delay on this case could have been avoided. The Council accepted it usually takes photographs before reletting but, could not locate them.
- I am satisfied there was fault by the Council in its attempts to resolve the issue with the layout of the property. The Council accepted it could and should have dealt with it better than it did. It failed to consider alternative ways of establishing the layout. Officers could have considered alternatives much earlier on. As it noted, alternatives could have included photographic evidence, previous records, and contacting officers who previously dealt with this property and other properties in the block. The Council was not proactive and eventually took action suggested by Mr L. His suggestion of sending photographic evidence was not pursued. Nor is there evidence showing whether this was considered and discounted.
- The Council accepts the plans prepared for the sale contained several inaccuracies. It reviewed plans for other sized flats in the block and found their layouts the same, although some had a dividing wall between the kitchen and living room.
- I am satisfied the identified fault caused Mr L avoidable injustice. This caused frustration, stress, inconvenience, and frustration. While Mr L could have served notice of delays under the Right to Buy process, he failed to do so. The Council considered the award he might have received had he followed this process and gave him a rent rebate he might have received.
- I considered our guidance on remedies.
- I also considered the rent rebate the Council gave Mr L when completing the sale of his property and the apology it gave for its failures. I also took account of the impact of Covid-19 and the national restrictions introduced in 2020.
- The Council agreed to carry out the following action within 4 weeks of the final decision on this complaint:
- Pay £250 to Mr L for the injustice the fault caused.
- Remind officers of the need to consider alternative sources of evidence when faced with discrepancies in layout plans on Right to Buy sales.
- Remind officers of the need to keep accurate records of the condition of empty properties before re-letting as well as any internal structural changes done.
- The Ombudsman found fault on Mr L’s complaint against the Council. The agreed action remedies the injustice caused.
Investigator's decision on behalf of the Ombudsman