Decision : Upheld
Decision date : 12 Apr 2022
The Ombudsman's final decision:
Summary: Mr X complains the Council delayed responding to his request for a review of its decision not to pay solicitor’s costs. He also says the reasons the Council gave were incorrect. He says it has caused financial loss and time and trouble. We consider there is fault by the Council in its decision making, and avoidable delay. We have recommended a remedy.
- Mr X complains the Council delayed replying to his request made in January 2021 to review its decision not to pay his solicitor’s fees following a Right to Buy complaint. Mr X says the Council kept changing its reasons, did not consider evidence he provided and repeated grounds that the Ombudsman had previously found were faulty.
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).
- 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
- I have discussed the complaint with the complainant and considered the complaint and the copy correspondence provided by the complainant. I have considered documents the Council provided. Mr X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.
What I found
- Mr X had made a previous complaint in 2016 to the Council and the Ombudsman about its handling of his right to buy application for his Council home. The Council had accepted it was at fault and offered to pay a remedy and his solicitor’s fees if he provided evidence. However, it then refused to pay the fees or the remedy it had offered. The Council said this was because it considered the solicitor’s fee evidence was fraudulent.
- Mr X complained to the Ombudsman regarding the Council’s decision. We found the Council’s decision making regarding the solicitor’s fees was faulty. the Council agreed to our recommendation to pay the remedy it had agreed, and it also agreed to review its decision not to pay the solicitor’s fees.
- In December 2020 the Council reviewed its decision. It decided that it should not pay the solicitor’s fees. It wrote to Mr X and explained that:
- It did not have any evidence to prove on what basis the solicitor’s firm were instructed by him, or what advice he sought from them.
- He had not sent a fee schedule for the work undertaken.
- There was no evidence of Mr X actually paying for the invoice for the legal advice he sought from the firm.
- During the interview with the Council’s Housing Fraud Team Mr X recognised the Council would not pay him given the facts presented to him at that time.
- He was not sure what the Council meant by the basis on which he instructed the solicitor. He said his right to buy application was financially significant and he asked the solicitor to help him. The solicitor had considered all the documents and had complained to the Ombudsman. The solicitor wrote a further letter and discussed the matter by telephone. The Council had seen the work the solicitor carried out in the complaint letters. He considered the letters were evidence he had asked the solicitor for its advice and that it had carried out work for him.
- He had agreed a fixed fee with the solicitor and the invoice provided a general description of the work it had done. Other solicitors he had spoken to had confirmed the fee was reasonable. He could not understand why the Council expecting him to provide a fee schedule.
- He had provided a copy of an receipt which confirmed he had paid. If he had not paid the solicitor would have taken action against him.
- The Council kept saying he had recognised or accepted he would not be paid but this was not correct. He had agreed that he understood the Council when an officer told him at the interview that it would not pay him due to the firm not being registered for VAT. He said this was not the same as accepting it would not pay. He had also since found out that VAT registration was not relevant.
- I have considered the Council’s decision making as explained in its review letter of December 2020. In my view there was fault in the Council’s decision making, because it was incorrect in saying there was no evidence. It did not apparently consider Mr X’s points, and appears to be requesting an unfairly high level of evidence.
- The Council stated there was no evidence Mr X had paid. But I have seen a copy of a receipt he provided to the Council. He had also given the Council information about how he had paid.
- The Council stated there was no evidence of the basis on which Mr X instructed the firm or the advice he sought. However, I am aware the Council had seen the solicitor’s letter (nine pages) to the Ombudsman, which outlined the Right to Buy complaint, and resulted in the Ombudsman finding fault and a remedy. Mr X stated the basis of his instruction, and the advice he sought was within the solicitor’s letter.
- The Ombudsman’s previous decision had found fault with the Council’s decision making because it had referred to there being no evidence of the solicitor’s work. I considered the solicitor’s letters were evidence of the work it had carried out. I recommended the Council reconsidered this, but it appears the Council has not done so.
- The Council does not appear to have fully considered the circumstances of the case, as it has not considered Mr X’s comments about the reasons he sought the solicitor’s help. The Council does not appear to have taken account of the difficulty in obtaining additional evidence in view of the solicitor’s firm closing down and the amount of time that has passed.
- In requesting a schedule of fees, I consider the Council appears to be asking for a higher level of evidence than it would normally require.
- Mr X questioned the Council’s grounds that he had accepted in the fraud interview the Council would not pay him. The Council does not appear to have properly considered this point. The Ombudsman’s previous investigation noted that the Council had not retained a recording of this interview or a transcript.
- Based on the information I have seen so far, I consider there is fault by the Council causing injustice to Mr X. I recommend that, within 6 weeks of my decision, the Council:
- Apologises to Mr X for its delays and pays him £150
- Arranges a review the decision, by a different officer, ensuring it is not affected by the faults I have identified.
- Writes to Mr X with its decision explaining its reasons and a response to the key points raised.
- Subject to further comments by Mr X and the Council, I intend to complete my investigation and close the complaint.
Investigator's decision on behalf of the Ombudsman