Summary: The Ombudsman found no fault on Mr Y’s complaint about the Council’s failure to promptly return the property it rented from him. It followed proper legal procedures to evict its tenant. The Ombudsman found fault by the Council failing to keep him properly updated about progress with its return. It also failed to meet the timescale in its complaint procedure at stage 2. Its offer of £420, and this investigation, remedies any injustice caused.

The complaint

1. Mr Y complains the Council failed to:
1. Promptly return the property it rented from him when requested for almost a year; and
2. Agree to increase the rent payable for it.
2. As a result, he lost the opportunity to rent the property out during this period at a higher rent which cost him more than £3,000.

Back to top

What I have investigated

3. While part of Mr Y’s complaint a) is late, I exercised discretion to investigate all of it. Mr Y knew the Council failed to hand the property back within 3 months in October 2018. We would expect to receive a complaint about it within 12 months of this date which would was October 2019. While Mr Y did not complain to us until December 2019, he had pursued the issue with the Council and the failure was ongoing.
4. I did not investigate complaint b). The paragraph at the end of this statement explains why.

Back to top

The Ombudsman’s role and powers

5. If we are satisfied with a council’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)
6. 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)
7. 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, sections 26B and 34D, as amended)

Back to top

How I considered this complaint

8. I considered all the information provided by Mr Y, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent him. I sent a copy of my draft decision to Mr Y and the Council. I considered their responses.

Back to top

What I found

9. Mr Y owns a property. In February 2015, he signed a 3-year agreement (lease 1) to rent it to the Council. The Council let it to its tenant. During this period, the rent he received was fixed. When Mr Y wanted the property back, he had to give the Council 3 months’ notice.
10. The lease converted to a periodic lease in February 2018 (lease 2). This meant the terms and conditions in lease 1 would continue in the new lease.
11. In July, after the Council refused to agree a rent increase, Mr Y told the Council he wanted the property back. The following day, the Council gave its tenant notice to quit the property. The Council wrote and told Mr Y it would return the property by October. In its letter to him, the Council warned while it would take every step possible to arrange its return by this date, ‘this cannot be guaranteed’.
12. The Council’s tenant refused to leave which meant it had to apply to court for the tenant’s eviction. The tenant had rent arrears. The court held a hearing in November and awarded the Council possession of the property. The following month, the Council applied for an eviction warrant. It got the warrant and an eviction date for February 2019.
13. In February, the tenant told the Council about health problems which meant not removing belongings from the property. The Council says as the tenant continued to refuse to engage, it applied for another warrant in May. The tenant paid the rent arrears in full before the hearing, so the Council did not apply for the warrant based on rent arrears. The Council now had to try and find alternative accommodation for the tenant. This proved difficult because the type of property the tenant needed was in short supply.
14. The Council finally returned the property to Mr Y in August 2019, ten months after it said it would. Mr Y is unhappy with the time taken to return it to him which he says cost him £3,083.46 because of the increased rent he could have charged during this time.
15. The Council accepted it could have provided more updates to Mr Y during the process and noted he suffered inconvenience because of delay. While it said it was limited in terms of information it could release to him during the process because of data protection concerns, it offered him £420 as a goodwill gesture.

Analysis

16. I make the following findings:
1. Lease 1 Mr Y had with the Council had a term of 3 years from the start date. At the end of the term, the Council had to give it back to him. Mr Y could end this lease at any point by giving the Council 3 months’ notice in writing.
2. The lease would become a ‘periodic’ lease from quarter to quarter (3 monthly) after the expiry of the term if both the Council and Mr Y agreed. The terms and conditions in lease 1 would continue in the new periodic lease.
3. In February 2019, lease 1 ended and, by mutual agreement, became a 3 monthly periodic one (lease 2).
4. Lease 2 continued on the same terms as lease 1 which meant the rent remained the same. Mr Y gave the Council 3 months’ notice in July of his intention to end lease 2. He gave notice because the Council refused to agree a rent increase.
5. Mr Y continued to receive the rent agreed in lease 2 until the Council returned the property.
6. I am satisfied the Council’s failure to return the property within the required 3 months was through no fault of its own. The tenant had legal rights to occupy it which could only be removed by the Council following the correct legal procedures and getting a court order. The Council, therefore, did not have full control over the removal of its tenant. The lease it granted its tenant created legal rights. The court initially did not make an outright order for the possession of the house. This meant the Council had to wait for the tenant to break the terms of the order. Once broken, the Council could apply for an eviction warrant from the court.
7. Mr Y entered in to the agreement with the Council to rent his property as a commercial project. For a lower than market rent, he got the security and guaranteed rent for the period of the lease. Mr Y should have taken legal advice to ensure he knew the legal implications of what he was agreeing, particularly as the Council would create its own leases with its tenants. The problem the Council faced when trying to remove its tenant is not uncommon. It is also a problem Mr Y could have faced had he let the property to a tenant himself.
8. The Council claimed it kept Mr Y informed about progress, mainly by telephone but, it could not provide evidence of doing so as the officer who called him left. This failure is fault.
9. I saw an email from Mr Y in November 2018 asking for an update. While there is evidence of internal emails chasing for updates about possession proceedings, there is nothing to show the Council gave Mr Y an update before April 2019. This is when he sent a further email asking for an update. In this update, the officer apologised for the late response stating she was, ‘under the impression that you have received updates by telephone by myself and colleagues’. This failure is fault.
10. The Council sent a further update at the end of May and some holding emails in June. In July, the officer told him to expect the return of the property by the end of the month.
11. The Council’s complaints procedure provides:

• Stage 1: These are acknowledged within 3 working days and full replies are sent within 10 working days;

Mr Y complained in April 2019 and the Council sent its response at the start of May.

• Stage 2: These are acknowledged within 3 working days and a full written reply sent within 25 working days;

In June, Mr Y asked for his complaint to go to the next stage. The Council acknowledged his complaint about 4 days later, explaining it had a high volume of complaints but, would allocate it to an investigator. A week later, the Council confirmed it had done so.

In July, the Chief Executive wrote to Mr Y explaining his complaint raised more questions which he needed answering before responding to his complaint. The Council responded in August, missing its timescale by almost 4 weeks. The Council replied to my draft decision about its complaints handling. It noted in this period, it told Mr Y about the need for further enquiries.

While I accept it warned Mr Y its investigation would take more time, its complaints procedure states, ‘All complaints will be responded to within the deadline for each stage’ (section 6.5, The Council’s Complaint Policy and Procedure). The problem is the policy does not say investigations might take longer than the timescales set out. Although I appreciate it warned Mr Y of the need to make further enquiries, the policy is quite clear about following the timescales. The delay, therefore, is fault.

• Stage 3: This involves a review by members of the Adjudication and Review Committee. The decision is sent out within 30 working days.
12. While I consider the fault caused Mr Y an injustice as he suffered distress (frustration and inconvenience, for example), I am satisfied the Council informing him about what was happening with his complaint, its financial offer, and this investigation, remedies it.

Back to top

Final decision

17. The Ombudsman found fault on Mr Y’s complaint against the Council. The remedy offered, and this investigation, remedies the injustice caused.

Back to top

Parts of the complaint that I did not investigate

18. I did not investigate complaint b). This is because Mr Y asked the Council to increase the rent for the property in January 2018. The Council told him it could not do so in February and then in July when he raised it again. 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. As Mr Y became aware of the Council’s decision in July 2018, he had until July 2019 to complain to us about it. He did not complain to us until December 2019.

Back to top

Investigator's decision on behalf of the Ombudsman