Summary: We will not investigate this complaint about a ‘right to buy’ sale. Mr X and Ms Y did not serve all the notices that would have protected their position, they could reasonably have taken court action and the complaint is late without good reason to investigate it now.

The complaint

1. Mr X and Ms Y complain the Council delayed completing the sale of their home but will not adjust the future discount repayment period to take account of that. This means they will have to wait longer than they consider right before they can sell their home without having to repay some discount.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The law says we cannot normally investigate a complaint when someone could take, or could have taken, the matter to court. However, we may decide to investigate if we consider it would be, or would have been, unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
4. 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, section 26B and 34D, as amended)
5. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

6. I considered information provided by the complainant and the relevant law.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. If a council delays a ‘right to buy’ sale, the tenant buying their home can serve first an ‘initial’ and then an ‘operative’ notice of delay. When a council sells a property at a discount under the ‘right to buy,’ the sale must include a covenant requiring the buyer to repay some or all of the discount if they sell the property within five years. However, the covenant will adjust the five-year period in the buyer’s favour if the buyer served initial and operative delay notices about any Council delay during the purchase. (Housing Act 1996, section 155)
9. When Mr X and Ms Y were buying their home from the Council, they considered the Council was delaying unduly in 2018 and 2019. They served an initial delay notice. They decided against serving an operative delay notice because matters seemed to be moving again. The sale completed in 2019 with a covenant requiring repayment of some discount on any sale up to 2024. Mr X and Ms Y now argue the repayment period should end in mid- or late 2023, to take account of the Council’s alleged delay in 2018-19. The Council will not change the period.
10. Mr X and Ms Y started, but did not complete, the delay notice process that would have adjusted the repayment period. I recognise that was because they believed the application was moving again. However, the delay notice process exists to protect buyers’ financial positions with rent paid during a delay and the impact of a delay on future discount repayment arrangements. It was Mr X’s and Ms Y’s choice not to serve the operative notice of delay that would have protected their position on future repayment.
11. Mr X and Ms Y accept they did not complete the delay notice process, but they argue Council did not follow a proper process either in its disagreement with the district valuer that delayed the sale. That argument is not directly relevant to the key point here, which is there was reasonably an onus on Mr X and Ms Y to protect their own position and the delay notice system would have done so for exactly the situation they are now concerned about.
12. The current situation therefore stems from Mr X’s and Ms Y’s decision not to protect their position, so it would be disproportionate to investigate any possible fault by the Council now.
13. Also, the county court can decide any dispute about the right to buy (except some valuation points, not relevant here). (Housing Act 1996, section 181) Before completing the purchase, Mr X and Ms Y had the right to go to court about the period for any discount repayment. Therefore the restriction in paragraph 3 applies.
14. The law expressly provides this route for right to buy disputes, so we normally expect people to use it. Mr X and Ms Y knew of the right to go to the county court because they threatened to do so about the alleged delay. The conveyance would have included a covenant setting out the periods when they must repay some or all of the discount if they sold the property. So, before completion, they would reasonably have known of this matter and that it could affect them if they wanted to sell within five years. The potential cost of court action does not automatically make it unreasonable to go to court. That is especially so when buying a valuable asset such as a home. In all the circumstances, it is reasonable to expect Mr X and Ms Y to have taken court action on this matter.
15. Separately, Mr X and Ms Y knew by the time of completion in 2019 that they had been unhappy with how long the Council had taken. They would also reasonably have known then about the future discount repayment condition, which they had no reason then to believe the Council would waive. So the restriction in paragraph 4 also applies. I do not see good enough reason to accept this late complaint now. Even if the points in this paragraph did not apply, the other points above would still be reasons not to investigate the complaint.

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Final decision

16. We will not investigate Mr X and Ms Y’s complaint because: their claimed injustice stems directly from their not completing the delay notice process that would have protected their position; they could reasonably have taken court action; and the complaint is late without good reason to investigate it now.

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Investigator's decision on behalf of the Ombudsman