Decision : Upheld
Decision date : 30 Apr 2021
The Ombudsman's final decision:
Summary: Mr K complained the Council made errors in the Right to Buy process which delayed his purchase of a property. He also said it wrongly disputed the property boundary. The Council was at fault for the errors it made. These caused a limited delay to the completion of the process, and the Council apologised for this. However, this was not enough to remedy the injustice caused to Mr K. And so, the Council agreed to make a payment to Mr K to acknowledge the distress and uncertainty caused.
- The complainant, whom I shall refer to as Mr K, complained the Council caused delays in completing his Right to Buy (RTB) application. He said it:
- made administrative errors;
- wrongly disputed the property boundary; and
- communicated poorly with him.
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)
- The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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 my investigation, I have:
- considered Mr K’s complaint and the Council’s responses;
- considered the correspondence between Mr K and the Council;
- spoken with Mr K about his complaint; and
- given Mr K and the Council the opportunity to comment on a draft version of this decision, and I considered the comments they made.
What I found
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 the full market value. This is because of a discount based on the length of time spent as a tenant. The law about Right to Buy is found in the Housing Act 1985.
- The Right to Buy process involves:
- A council receives an application from a tenant to buy their property (RTB1);
- The council then has 4 weeks to issue a notice confirming the applicant is eligible to buy it (RTB2);
- The council has 8 weeks to send the applicant a formal section 125 Notice (RTB4). This sets out the price to pay and the terms and conditions of sale;
- If a council does not meet the timescales, an applicant can serve an initial Notice of Delay form (RTB6);
- A council can counter this by serving its counter notice (RTB7); and
- If the council fails to respond within a month, the applicant can send an ‘Operative Notice of Delay’ (RTB8). Once sent, a council, as landlord, may need to refund rent paid during the period of delay.
- If a council still does not act on notices of delay, the tenant may take their dispute to the County Court. Under Section 181 of the Housing Act 1985, the County Court has wide discretion to decide any question arising from the provisions of the RTB scheme, the only exception being the value of the purchase property.
- Mr K applied to buy his house under the RTB process 2019. In July 2019, the Council sent Mr K a form setting out the price to pay and the conditions of sale, including a plan of the property boundary.
- Mr K told the Council it made an error with the plans for the property boundary. He said part of the garden was wrongly marked as belonging to the neighbouring property.
- The Council’s RTB officer spoke with Mr K. The Council’s note of the call says the officer offered Mr K to refer the matter back to its estate officer to look into this. However, it noted that Mr K said he did not want to do so, and so the existing plans remained.
- Mr K said he did not ask for the existing plans to remain. He wanted the Council to amend the plans to include the boundary as set out in the plans held by the HM Land Registry. He said he told the Council’s RTB officer that he had maintained the disputed part of the land for many years, and if the Council did not agree with him, it could maintain the land.
- The RTB process continued, and Mr K gave the Council his solicitor’s instruction and confirmation of his intention to complete the RTB. And so, the Council told Mr K all the pre-legal matters had been completed. It also told him there could be delays in the RTB process if issues arise during its drafting of the documents.
- The Council sent Mr K’s solicitor the legal documents and plans. However, the documents wrongly said Mr K’s property had solar panels. In addition, Mr K said the plans still had the wrong boundary. And so, Mr K’s solicitor asked the Council to correct the errors.
- In March 2020, the Council told Mr K’s solicitor it would remove the reference to solar panels from the legal documents when the boundary of the property was decided.
- A month later, the Council gave Mr K the revised plans, including a map of the amended boundary. It asked Mr K to confirm if he was happy to continue as set out in the documents.
- Mr K said due to COVID-19, it took him a month to return his agreement to the Council.
- The Council accepted Mr K’s agreement and sent its completed transfer documents to Mr K’s solicitor. However, in error it had put in the wrong address for the property. It said it issued a correctly amended version of the documents the same day.
- A week later, Mr K’s solicitor returned a signed version of the wrongly addressed transfer documents to the Council. He had hand amended the address to correct the Council’s error. However, the Council told Mr K’s solicitor it could not accept the documents as these had been amended by hand.
- Mr K was unhappy with how the Council had handled the RTB process, and so in July 2020 he complained to the Council. He said it had taken nine months so far for him to try to buy the property under the RTB process and the Council had caused delays because:
- it had wrongly referred to solar panels in its transfer documents;
- its consideration of the property boundary was flawed and it eventually agreed to the correct boundary as set out in the HM Land Registry records all along; and
- it had put the wrong address in the transfer documents.
- It identified its error with the solar panels at an early stage and it had told Mr K’s solicitor it would correct this when the property boundary was confirmed;
- It told Mr K’s solicitor in March 2020 that it could not provide the transfer documents as the boundary was not confirmed, and it confirmed this in April 2020.
- It sent the transfer documents in May 2020 but acknowledged these had the wrong property address. However, Mr K’s solicitor had wrongly hand amended these. It then sent the correct version of the transfer documents on the same day and told Mr K’s solicitor it could not accept his hand amended version.
- It had not yet received the completed transfer documents from Mr K’s solicitor.
- he understood the impact COVID-19 had but thought the Council should have contingency plans to deal with disruption;
- its communication with him was poor as it did not return some of his calls and it did not acknowledge or respond to his distress;
- it lost two signed documents his solicitor sent to it; and
- he experienced distress because of the Council’s handling of the boundary issue.
- it did not find fault in its complaints handling, as it had responded to Mr K’s complaint informally in August 2020.
- Mr K decided not to dispute the boundary after his call with its officer in 2019, but first raised this concern in February 2020. It agreed there were some delays to confirm the boundary between February 2020 and April 2020 due to COVID-19. It explained this put unprecedented pressure which impacted in on other services until it could put new measures of working in place.
- its error in the first transfer documents in referring to solar panels did not cause a delay as the boundary had to be agreed.
- it acknowledged it had sent the wrongly addressed property transfer documents to Mr K’s solicitor. However, his solicitor amended the wrongly addressed transfer documents by hand, which the Council could not accept. It then sent a correct version of the document the same day. It accepted this caused a short delay and apologised, but it said any further delay was not due to the Council’s action.
- it appreciated Mr K’s frustration that it did not receive the documents sent by his solicitor. However, it said this was outside the Council’s control.
- Mr K complains about the Council’s handling of the RTB process between July 2019 and September 2020. He brought his concerns to our attention in November 2020. We expect complainants to bring their concerns to our attention within 12 months of the actions complained about. And so, part of Mr K’s complaint is late.
- However, I found it appropriate to exercise my discretion and consider the matter from July 2019. This is because Mr K continued to raise his concerns with the Council. Once the Council’s complaint process had been exhausted, he did not delay complaining to the Ombudsman. In addition, I also consider it was reasonable for Mr K to wait until the RTB process finished before bringing his complaint to us. I have therefore considered all parts of Mr K’s complaint.
- In July 2019 Mr K told the Council the property boundary it set out in the Section 125 Notice was wrong. However, the Council and Mr K then spoke by telephone. The Council’s note of the call says Mr K said he did not want to continue to challenge the boundary. And so, it did not investigate whether the boundary was correct.
- Mr K disagrees with the Council’s view of the call. He says he wanted to challenge the boundary. The recording of the call is no longer available, and so I cannot say what was agreed during the call. I cannot therefore find the Council at fault for not investigating the property boundary at this stage.
- It is normal practice for the buyer’s solicitor to check the legal title to the property after an offer is made to buy the property. This is what happened. In early 2020, Mr K’s solicitor told the Council the boundary was wrong in its plans and it had wrongly referred to solar panels in the documents. It was at this stage the Council started to investigate the property boundary. It apologised to Mr K that it took two months for it to do so but explained this was due to the impact the COVID-19 outbreak had on its services.
- While I acknowledge the frustration Mr K experienced from this delay, I accept COVID-19 had a severe impact on the Council in this period and it had to prioritise other frontline services. I cannot therefore fault the Council for its delay in investigating the boundary and amending the transfer documents accordingly.
- Mr K said the Council made several errors which delayed the RTB process. The Council agreed that it had wrongly referred to solar panels in the property documents. However, it said this did not cause any delays.
- Mr K’s solicitor told the Council in early 2020 the property did not have solar panels. The Council acknowledged its error and said it would correct this when the boundary had been agreed. Once the Council established the boundary and Mr K agreed to this, it sent his solicitor the revised documents. I accept the property purchase could not progress until the boundary was agreed. Therefore, there was no need to send a revised version of the documents to correct the solar panel error. This is because a further amended version would be needed when the boundary was confirmed.
- The Council’s revised documents then had the wrong address for the property. However, the delay caused by this error was limited. This is because the transfer documents were corrected as soon as the Council became aware of the error. While I understand Mr K’s solicitor returned the hand amended transfer documents to the Council, he ought to have known that these could not be accepted. And so, the Council’s error only caused a short delay to replace the incorrectly addressed transfer documents.
- I understand Mr K believes the Council’s officer agreed to receive hand amended documents. However, based on the evidence available, this related to Mr K’s agreement to the amended property boundary, not the actual property transfer documents.
- Mr K also said the Council lost the transfer documents his solicitor sent two times in July 2020. The Council said it has no record of receiving the documents. And so, I cannot say the Council is at fault for losing these documents. This is because I have seen no evidence that the documents were sent by Mr K’s solicitor. I am also satisfied the Council made proper attempts to locate the documents.
- Mr K also complained about how the Council communicated with him during the RTB process. He said it had failed to return calls and it had not acknowledged or responded to the distress he was experiencing as a result of the long RTB process.
- The Council did not find any fault in its complaints handling. However, it apologised to Mr K if it had failed to return any of his calls.
- I cannot fault the Council for its communication with Mr K or its complaints handling. This is because it responded to Mr K’s complaint informally in August 2020 and then twice through its formal complaints process. I am satisfied its responses addressed his complaint, although I acknowledge Mr K did not agree with its findings.
- In addition, I understand Mr K feels he should have received more information or support from the Council. However, under a RTB process the Council acts as a seller and it normally only communicates directly with solicitors. I would therefore expect for Mr K’s solicitor to have provided the support and guidance Mr K feels he needed.
- I found faults by the Council. However, these only caused a limited delay to Mr K’s purchase of the property. The Council apologised for the delays it was responsible for. I am satisfied this is an appropriate remedy for the delay caused.
- In addition, I am mindful that Mr K and his solicitor did not use their legal right to serve delay notices on the Council. This would have been the appropriate way to ensure the RTB process did not have any further delays or for Mr K to be compensated for delays caused by the Council.
- However, I acknowledge the Council made several errors and its plans set out the property boundary wrongly in comparison to its registered title. Although this did not cause a significant delay, I am satisfied it caused Mr K some distress and uncertainty in the Council’s ability to manage the RTB process properly.
- To remedy the injustice the Council caused to Mr K, the Council agreed to, within one month of the final decision:
- Pay Mr K £150 to acknowledge the avoidable distress and uncertainty this caused him;
- Remind its staff of the importance of drafting property transfer documents correctly before sending these to buyers;
- Put in place procedures to limit its difficulties to progress RTB processes during COVID-19 or when its staff cannot access its buildings.
- There was fault leading to injustice. The Council has agreed to my recommendations. Therefore, I have completed my investigation.
Investigator's decision on behalf of the Ombudsman