The Ombudsman's final decision:
Summary: The Council was at fault, because it did not make the correct payments for two properties it was leasing, and the complainant was put to unnecessary time and trouble in resolving the matter. The Council has now paid the correct amounts and offered a financial remedy to reflect the complainant’s time and trouble, but has agreed to increase its offer marginally upon recommendation from the Ombudsman.
- The complainant, to whom I will refer as Mr G, leased two properties to the Council under its Help2Let scheme. He complains:
- the Council failed to promptly pay an agreed incentive for Property 1; and
- while pursuing this with the Council, it became apparent the it had been underpaying the agreed rent for Property 2 since 2015.
- Mr G says he was put to a significant amount of unnecessary time and trouble while trying to resolve these matters. While the Council has offered him £150 as a financial remedy for this, he does not consider this adequate.
- Mr G also complains the Council gave information about him to a local Councillor, without his permission, and he considers this to be a data protection matter.
What I have investigated
- I have investigated the matters described in paragraphs 1 and 2. I have not investigated the point described in paragraph 3, for reasons I will explain at the end of this decision statement.
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)
- 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)
How I considered this complaint
- I reviewed Mr G’s correspondence with the Council.
- I also shared a draft copy of this decision with each party for their comments.
What I found
- The following chronology is a list of key facts and events pertaining to this complaint. It is not intended to represent every detail.
- Mr G is a landlord. He owns two properties, which he has leased to the Council for several years under its Help2Let scheme. This is an estate and management agency owned by the Council, which lets properties to local residents and families at below-market rates. Landlords benefit from the scheme because the Council guarantees the rent, manages properties at no cost, and offers incentive payments.
- In September 2018, Mr G signed a new lease on Property 1. Part of the lease agreement was an incentive payment of £3500.
- In December, the Council had still not paid Mr G the incentive, despite his attempts to chase it. At that point, the Council asked Mr G to visit its offices, to sign a new lease for Property 2. Mr G declined to do this until he had received the incentive for Property 1.
- It then became apparent the two-year lease for Property 2 had expired in November 2017, more than a year earlier. This meant there had been no re-negotiation of the for this property at the appropriate time.
- After further attempts to contact the Council, without resolution, Mr G submitted a complaint on 31 January 2019. The Council responded on 6 February 2019. It explained the delays had been due to under-resourcing at the Council and a backlog of lease renewals. However, it apologised, and agreed to provide Mr G with a backdated rental increase on Property 2, to when the new lease should have been signed in November 2017.
- Upon reviewing their figures, Mr G then noticed the Council also had never increased its rent payments to him in line with the lease he had signed in November 2015, meaning he had been underpaid by several hundred pounds since then. The Council accepted this during an email exchange in February and calculated the underpayment. However, Mr G said he considered he was also due compensation for the time and trouble he had been put to in pursuing the matter.
- On 4 March, Mr G asked for his complaint to be escalated to stage 2, as he had still not received any back payment at all from the Council.
- The Council responded on 3 April. It said it owed Mr G a total of £4879.15, which was £3500 for the incentive payment on Property 1, and £1378.15 in back rent for Property 2. The Council apologised again for its failure to pay these monies on time and confirmed it would do so the following day.
- Mr G replied on the same day. He criticised the Council’s failure to consider the time and trouble he had been to, and said he expected a total of £1700 in compensation. He also said he would refer his complaint to his local Councillor, the Ombudsman, and asked the Council to escalate it to the “the next level”.
- The Council responded on 9 April to say it was considering whether it could offer him compensation. It copied Mr G’s Councillor into the response. On 12 April, it emailed again to say it could offer him £150 to recognise his time and trouble pursuing the complaint.
- Mr G replied on 15 April. He described the Council’s offer as “insulting” and reiterated the difficulties he had experienced in attempting to address the underpayments. He said he noted from the Council’s complaint policy all stage 2 responses were to be signed off by the complaint manager, and he asked for the manager’s details. Mr G also complained the Council had released his personal information to the Councillor without his permission.
- After further correspondence with the Council, Mr G referred his complaint to the Ombudsman on 24 July.
- There is no dispute the Council did not make the appropriate payments to Mr G at the correct time. He spent several months chasing the agreed incentive payment for Property 1, and the back payment of rent for Property 2, which included the increase in rent when the lease should have been renewed in November 2017, and also the underpayment of rent for period November 2015 to November 2017.
- As I understand it, the Council has now made the outstanding payments, and in this respect Mr G’s complaint has been resolved. However, Mr G considers he has been put to significant time and trouble pursuing these matters, and considers the Council’s offer of £150 to recognise this to be inadequate. He considers the Council should instead offer him £1700.
- I share Mr G’s view he has been to unnecessary time and trouble here. I have not sought to reflect every instance of communication between Mr G and the Council during the relevant time period, but there was a significant volume of correspondence. The Council’s responses to Mr G’s emails were frequently delayed, or not forthcoming at all, and in many cases there does not appear to be any clear explanation for this.
- And it is also difficult to understand why, even several months after the Council had recognised its errors, it still had not made payment to Mr G.
- However, I cannot agree with Mr G’s view of £1700 is an appropriate payment to reflect his time and trouble.
- Mr G has arrived at this figure by saying the Council should pay £300 for each year of rent underpayment, which at four years (2015-2019) stands at £1200. He also considers he should receive £500 for the delay in the incentive payment.
- I accept the Council was underpaying Mr G’s rent on Property 2 since November 2015. It was at the beginning of 2019 it finally rectified this, representing a delay of approximately three and a half years.
- But it is equally clear Mr G did not notice this discrepancy himself until February 2019. Nor did he appear to notice, until December 2018, the lease on Property 2 had expired in November 2017. As such, he was not put to any time and trouble during the intervening period, as he was not pursuing the matter then. The only injustice to him during that period was the fact he was being underpaid, which has been remedied by the back payment itself.
- I also accept the Council delayed making the incentive payment on Property 2, for approximately seven months, which put Mr G to additional time and trouble. However, his requested payment of £500 for this is considerably more than the Ombudsman would generally recommend for this, as described in our published Guidance on Remedies.
- I consider a payment of £200 would be an adequate remedy for Mr G’s time and trouble. This is £100 each for the problems with the payments for Properties 1 and 2 respectively.
- I note Mr G says he has now withdrawn one of his properties from the Council’s scheme, as a result of this complaint. However, this was his own decision, and I do not consider this is an injustice caused to him by the Council.
- Within one month of the date of my final decision, the Council has agreed to offer Mr G £200 to reflect his time and trouble pursuing this complaint.
- I have completed my investigation with a finding of fault causing injustice.
Parts of the complaint that I did not investigate
- I have not investigated Mr G’s complaint that it was a breach of data protection for the Council to pass information about his complaint to a Councillor.
- The Ombudsman generally expects complainants to approach the Information Commissioner’s Office (ICO) with complaints about data protection matters. This is because the ICO is an expert body with a specific jurisdiction to investigate and rule on such issues.
- In this case, the Council’s view is there was no breach of data protection, because the Councillor is also part of the Council, and not a third party.
- I do not have the expertise to determine whether the Council’s reading of the law is correct on this. However, I note the Council disclosed the information to the Councillor in response to Mr G’s own comment, that he intended to approach him. As such, in either case, I am unable to see what injustice this could be said to have caused Mr G, as he was clearly content for the Councillor to know about his complaint.
- I cannot say whether the Council was at fault here, but, in the absence of any injustice to Mr G, I consider this to be a matter best addressed by the ICO. I recommend Mr G approach the ICO if he wishes to pursue it.
Investigator's decision on behalf of the Ombudsman