Summary: We will not investigate this complaint about the Council’s handling of a “right to buy” application. It is reasonable to expect Mr X to take court action about the handling of his application. Other points are more properly for the police and the Information Commissioner.

The complaint

1. Mr X complains the Council delayed and complicated his buying his home from the Council. He also complains a Council officer committed “misfeasance in public office” by disclosing information about him. He says this extended the time it took to complete the purchase and caused him distress and financial problems.

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The Ombudsman’s role and powers

2. 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)
3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide: further investigation would not lead to a different outcome, or there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

5. I considered information provided by the complainant and copy complaint correspondence from the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mr X reports there were various problems in the Council’s handling of his application to buy his home. On one of those points, the Council accepts there was a delay and some difficulty before it gave Mr X some information his potential mortgage lender needed. The Council apologised, provided the necessary information and described steps it had taken to reduce the chance of the problems recurring. Mr X told the Council he did not believe it had really changed anything for the future. However, as the Council provided the necessary information and set out changes it has made, it seems unlikely we would achieve significantly more by investigating this point.
8. Mr X says the above problem, and other problems with his application, meant he paid rent for around three months longer than he should have, rather than putting the money towards paying to buy his home. The “right to buy” system can require a Council to deduct rent paid during certain delays from the eventual purchase price of the home, if the tenant has served initial and operative notices of delay. I am aware Mr X served initial notices. I am not clear if he served operative notices. If he did not serve operative notices because an initial notice resolved any delay, that is part of the system the law provides, so it would not be proper for us to seek repayment in circumstances where the law did not require it.
9. Anyway, the law allows the county court to decide any dispute about the “right to buy” except for disputes about the valuation of property (the latter point is not relevant to this complaint). (Housing Act 1985, section 181) So the restriction in paragraph 2 applies to this point. If Mr X believes the Council should repay some of his rent, whether or not that involves periods for which delay notices could have been, or were served, the court can decide the matter. As the law expressly provides this route for resolving such disputes, we normally expect applicants to use it, with legal advice if necessary. There might be some cost to court action, but that in itself does not automatically make taking court action unreasonable, particularly in the context of a transaction for a valuable asset such as Mr X’s home. The court could also make a binding order if it saw fit, which the Ombudsman could not. For these reasons, it is reasonable to expect Mr X to use the right to go to court.
10. Mr X believes a Council officer gave confidential information about Mr X to someone else, causing problems for Mr X, including damaged personal relationships, distress and his business having to close, leading to financial problems. Mr X believes this alleged data breach amounted to “misfeasance in public office.” He suggests this is a criminal offence (such an offence would usually be misconduct in public office).
11. It is for the police, not the Ombudsman, to investigate allegations of crime. It is for the prosecuting authorities to decide whether to prosecute an alleged crime and it is for the courts to decide whether someone is guilty of an alleged crime. None of those is properly the role of the Ombudsman, so we shall not take any action about the alleged crime.
12. If by “misfeasance in public office” Mr X means a civil legal matter where someone’s wrongful action caused him damage, that is something the courts can decide. So the restriction in paragraph 2 applies. Questions of whether misfeasance has occurred, and any resulting damage and compensation responsibilities, especially for consequential or economic loss, are not legally straightforward. It is properly for the courts, not the Ombudsman, to decide such points. There might be some cost to legal action, but that in itself does not make it reasonable for the Ombudsman to seek to decide whether there was misfeasance in public office.
13. The question of whether there was a data breach is more appropriately a matter for the Information Commissioner than the Ombudsman to decide.

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Final decision

14. We will not investigate Mr X’s complaint. It is reasonable to expect Mr X to take court action about the handling of his “right to buy.” The alleged “malfeasance in public office” is more properly for the police or courts, not the Ombudsman. The alleged data breach is more properly for the Information Commissioner.

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Investigator's decision on behalf of the Ombudsman