Summary: We found fault by the Council on Mrs G’s complaint about its decision to cancel her Right to Buy application. It failed to make her a written offer within 8 weeks, failed to tell her of her right to seek a remedy through the courts when it cancelled her application, and failed to make and retain evidence of the request for advice, along with the advice received, from a third party. The agreed action remedies the injustice caused.

The complaint

1. Mrs G complains about the Council denying her Right to Buy application and it failing to:
1. promptly process her application;
2. provide copy documents when requested; and
3. respond to correspondence.
2. As a result, its decision has caused her a great deal of stress.

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The Ombudsman’s role and powers

3. If we are satisfied with an organisation’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)
4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
6. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

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Right to Buy: law and policy

7. The ‘Right to Buy’ (RTB) refers to rights granted under the Housing Act 1985 to tenants of social landlords, including councils, to buy their home at a discount provided they meet certain criteria.
8. Under the scheme, a tenant receives a discount on the property value based on the time they have been a tenant. There is a maximum discount.
9. 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, for an independent valuation by the District Valuer. The applicant then has twelve weeks to either accept the valuation issued under a ‘Section 128 Notice’ or withdraw from the sale.
• If either party disagrees with the independent valuation, they may appeal to the District Valuer within 28 days of the Section 28 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.

10. If 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 (RTB7), 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.
11. 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”.
12. 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”.

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What I have and have not investigated

13. Although this complaint would usually be outside of our jurisdiction, I exercised discretion to investigate it. This is because there is no evidence of the Council advising Mrs G of her right to seek a remedy at court against its decision to cancel her application.

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How I considered this complaint

14. I considered all the information Mrs G sent, including the Council’s response to my enquiries. I sent a copy of my draft decision to Mrs G and the Council.

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What I found

15. Mrs G and her children have lived in their Council property for more than ten years.
16. In August 2022, she applied to buy the property under the Right to Buy (RTB) scheme. The following month, the Council responded by sending her form RTB2 (Notice in Reply to Tenant’s Right to Buy Claim). This said it was obliged to send her another notice within 8 weeks setting out the proposed terms of sale and purchase price.
17. In April 2023, the Council wrote to Mrs G and said during the valuation, it became aware the property had a disabled two storey side extension. After taking advice from the RTB Government Help Team, it decided the property was not within the RTB scheme. It ended by saying it was going to cancel her application.
18. No evidence of this advice was provided by the Council. While it said this was verbal advice, no record of verbal advice, or the information gave when seeking it, was provided.
19. Mrs G replied at the start of May saying her legal advice disagreed with the Council’s view. She asked for a copy of the advice.
20. Later that month, the Council cancelled her application. It explained this was because the property: had features which have been adapted and were substantially different from an ordinary dwelling house; was designed specifically for a disabled person; was one of a number of dwellings let by those who are physically disabled; was a special facility wholly for the purpose of assisting the occupant.
21. Towards the end of the month, Mrs G served the Council with an Initial Notice of Delay, a copy of which I have not seen. The Council responded a few days later by sending her Form RTB7 (Landlord’s Counter Notice). This said there was no action for it to take because the RTB had been cancelled. It referred to attached correspondence, copies of which I have not seen.
22. In January 2024, Mrs G served another Initial Notice of Delay on the Council. The following month, the Council served a further Form RTB7 on her. This explained her application had been cancelled, and again referred to an attached letter, a copy of which I have not seen. She had also sent the Council two emails in January.
23. Shortly afterwards, she complained to us about the Council who said she had not given it the chance to consider her complaint first.
24. On 12 February, the Council replied to her emails and said it upheld its decision to refuse her application because:

• the extension was funded by the Disabled Facilities Grant;
• the extension was for the benefit of her son to help with his physical disability;
• the extension created two bedrooms and a ground floor toilet/wet room and a bedroom for a carer; and
• work started and was completed during her tenancy.

25. The Council, in reaching its stage one decision under its complaints procedure, noted:

• the property was registered as an adapted property when it let it to her and so was only available for families who needed adaptations. I have seen no evidence to support this statement;
• there was a tick on the Tenancy Sign up document which meant the property was not available for RTB. I have seen this form which listed several forms to complete, one of which was the RTB disclaimer. I have not seen a signed copy of this disclaimer;
• it was offered as a direct let based on the medical/disability needs of more than one in her household. I have seen no evidence to support this statement;
• an Occupational Therapy major adaptation referral for her son in April 2020 said he was physically disabled and needed a two-storey extension for works which were done in 2021. I have seen a copy of this document which ticked a box for physical disability but did not tick the box for registered disability. The referral goes on to say the extension was needed to create two bedrooms and a ground floor toilet/wet room and bedroom for carer;
• the plan for the extension she sent with her planning application. Mrs G denied this show it was for adaptation purposes;
• it was needed to accommodate a wheelchair user which was also confirmed in an adaptation check list in June 2012. The form I have seen, which is undated, listed the property category as ‘Adapted’ and had ‘potential’ for a ‘Wheelchair reliant person’. It also noted there was level access to all main living floor rooms, had a ground floor toilet in the outhouse with a step down, but did not tick to say it was wheelchair accessible. It noted there was no wheelchair shower, for example. Mrs G said her son was never a wheelchair user; and
• it was listed as having level access to all ground floor rooms, no steps to the property, and parking space.

26. I have also seen an undated Occupational Therapy referral form. This referred to a void date in December 2012. One entry said, ‘Medical info-autistic spectrum-Child’. Another entry asked, ‘What (if any) adaptations in situ’ to which the response was, ‘None-Property is a 3 bedroom house with an extra room downstairs, The main bedroom is quite large’.
27. Mrs G asked for it to go to the second stage of the Council complaint procedure. The Council reversed its decision after visiting her home in May 2024. The Council agreed there were no adaptations preventing her from buying her house, apart from possibly the downstairs toilet and wet room. It would allow her application to proceed. It agreed to use the same valuation made in 2022 because of the delay and would send her an offer within eight weeks. It also apologised for her having to make a complaint.

My findings

28. I make the following findings on this complaint:
1. I am satisfied the Council’s RTB2 Notice was sent within the required four weeks.
2. From its acceptance of Mrs G’s application, it had to make an offer within eight weeks. The Council failed to do so as it sent the cancellation notice to her seven months later. I am satisfied the Council took too long to tell her it was cancelling her application. It failed to explain what it was doing during this period. This delay is fault.
3. When considering the injustice to Mrs G, I note she could have served a Notice of Delay on the Council when it had not made her an offer within the eight-week period. On it, she would have had to give the Council at least 1 calendar month to reply. She then could have served the Council with an operative notice of delay (Form RTB8) if it failed to respond. This would have meant the rent she paid from this date would be treated as advanced payments to purchase. So, while there was a delay, there was a statutory process Mrs G could have followed which would have reduced the overall injustice to her. This might have forced the Council to focus on the issue with this proposed sale and so reduced some of the overall delay.
4. I found fault with the Council’s failure to tell her about her right to challenge its cancellation decision at court. This caused her an injustice as it denied her the opportunity to seek a remedy from the court.
5. The Council referred to advice from the government’s RTB Help Team. There was no record of this advice. While it was verbal, I would still expect to see a written record not only of the advice, but what was discussed, and what information had been given to the Help Team with the request for advice. This failure is fault. I am satisfied this caused Mrs G an injustice. This is because she has the uncertainty of not knowing what advice was given. She also does not know what information the Council had given the Help Team in the first place when seeking it.
6. I found no fault with the Council’s responses to her further Notices of Delay.
7. Mrs G took no action after receiving the cancellation notice from the Council in May 2023 until she sent emails in January 2024. There was some delay responding to her emails, but this was remedied by the response it sent in early February.
8. I have the following concerns with the evidence the Council had at the time it reached its decision:

• it failed to provide evidence showing it was registered as an adapted property or needed to accommodate a wheelchair user. The 2012 check list form, for example, said it had the potential for a person who used a wheelchair but also noted, there was an outhouse toilet with a step down. It did not tick the box to say it was wheelchair accessible or had a wheelchair accessible shower, for example. While it said it had level access to all ground floor living rooms, this is not an uncommon feature in many properties.
• there was no evidence to say her son was registered as disabled as the Occupational Therapy referral in 2020 merely said he was physically disabled.
• there was no evidence it was a direct let to her based on medical/disability needs.
• the Occupational Therapy referral in 2012 said there were no adaptations and merely described it as a three-bedroom house with an extra downstairs room, although I appreciate this was ten years earlier.
• the plans provided do not in themselves give any information about the extension being adaptations for someone with disabilities.
9. On balance, having considered these concerns, I am satisfied there was no fault in the Council’s decision to cancel her application. This is because despite them, there was some evidence which suggested the property had been adapted. For example, the extension was funded by a Disabled Facilities Grant, her son had a disability, and the Occupational Therapy referral in 2020 confirmed he was disabled and needed the works set out for the extension. It also said it was needed to create a bedroom for a carer.
10. I also note Mrs G did not provide contradictory information about the Council’s claim that this was an adapted property until January 2024. When she did, it investigated it and changed its position following a home visit.

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Agreed action

29. I considered our guidance on remedies.
30. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Mrs G a written apology for failing to: make an offer within eight weeks of receiving her RTB application; tell her of her right to seek a remedy at court; make and retain a record of the advice sought and obtained from the government RTB Help Team.
2. Pay Mrs G £250 for the injustice caused by the fault.
3. Review why it did not provide her with an offer within 8 weeks of her RTB application.
4. Review why it failed to tell her of her right to seek a remedy at court.
5. Remind relevant officers of the need to make and retain requests for advice and the advice received from the government RTB Help Team.
31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. I found fault on Mrs G’s complaint against the Council. The agreed action remedies the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman