Summary: The Ombudsman should not investigate this complaint about the Council not moving the occupant of Ms X’s rented property. This is because it would be reasonable for Ms X or her managing agent to take court action against the Council if necessary.

The complaint

1. A solicitor complains for Company Y that the Council has not removed the occupant of a property. Company Y says as a result the property’s owner is disadvantaged and inconvenienced as she needs to sell the property.

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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. 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)

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How I considered this complaint

3. I considered the information Company Y’s solicitor provided and I gave the solicitor the opportunity to comment on my draft decision.

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What I found

4. Ms X owns a property that is rented out through a managing agent, Company Y (not their real initials). Ms X and/or Company Y agreed the Council could place homeless people in the property. The Council gave a homeless person a licence live in the property.
5. Ms X now needs to sell the property so she wants the Council to move the occupant elsewhere so she can have vacant possession and sell. Ms X and Company Y cannot legally remove the occupant. This is because they do not have the necessary direct legal relationship with the occupant. Their relationship is with the Council and the Council has the direct legal relationship with the occupant.
6. Evidently the Council placed the occupant in the property under a legal agreement (such as a lease, contract or other agreement) with Ms X and/or Company Y that allowed the Council to do so. That agreement will include terms about how to end the agreement.
7. If Ms X and Company Y seek to give notice ending their agreement with the Council, in line with whatever the agreement says about termination, that could achieve the result they want, which is vacant possession of the property with no continuing right for the Council to use the property so Ms X can sell. So it is reasonable to expect Ms X and Company Y to do this.
8. If the Council does not comply with the terms for ending the agreement, or if Ms X and Company Y believe the Council is already breaching the agreement, they could take the Council to court. So the restriction in paragraph 2 applies.
9. I have considered whether it would be reasonable to expect Ms X and Company Y to go to court if necessary. Deciding whether a legal agreement has been performed or whether and how the agreement should end are not necessarily straightforward points legally. It is more suitable for the courts than the Ombudsman to decide such matters. I realise there could be a cost to court action. However, this is unlikely to be disproportionate compared with the benefit of getting the property back and selling it.
10. For these reasons I consider it would be reasonable to expect Ms X and Company Y to take court action if necessary. This means the Ombudsman cannot pursue the complaint.
11. I stress I am not suggesting Ms X and Company Y can take court action to remove the occupant. It appears they cannot do that. I am referring to their right to take legal action as necessary to end their agreement with the Council that allows the Council to place people in the property.

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Final decision

12. The Ombudsman should not investigate this complaint. This is because the complaint is outside the Ombudsman’s jurisdiction.

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Investigator's decision on behalf of the Ombudsman