Summary: Mr X complains about the Council’s decision to enforce a compulsory purchase order. He says the Council did not complete an internal inspection before making the decision, did not tell him what he was failing to comply with, and did not give him an opportunity to correct any short comings. We find fault with the way the Council made its decision to implement the CPO. We have made recommendations.

The complaint

1. Mr X complains about the Council’s decision to enforce a compulsory purchase order. He says the Council did not complete an internal inspection before making the decision, did not tell him what he was failing to comply with, and did not give him an opportunity to correct any short comings. Mr X also complains about the Council’s complaint handling.
2. Mr X says the Council’s actions caused him ill health, distress, and financial loss as he had to engage a solicitor to deal with the matter.

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The Ombudsman’s role and powers

3. 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)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
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)

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How I considered this complaint

6. I spoke with Mr X and considered the information he provided.
7. I made enquiries with the Council and considered the information it provided.
8. I sent a draft decision to Mr X and the Council and considered their comments.

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What I found

Legislation and guidance

9. Section 17 of the Housing Act 1985 gives local housing authorities (the acquiring authority) the power to acquire buildings and land through compulsory purchase. This allows local authorities to make compulsory purchase orders (CPO).
10. The Ministry of Housing, Communities, and Local government (MHCLG) is responsible for overseeing this procedure. Local authorities must submit applications to confirm CPOs to the Secretary of State, who is the confirming authority. The Secretary of State can delegate this decision to an inspector.
11. The government has published guidance (2019) which sets out the progress for making and implementing a CPO. It highlights that CPOs are intended as a last resort.
12. The guidance notes an acquiring authority should ensure the purposes for which the CPO is made justify interfering with the human rights of those with an interest in the land affected. Particular consideration should be given to the provisions of Article 1 of the First Protocol and Article 8.
13. It also notes a CPO which has been confirmed becomes operative on the date on which the notice of its confirmation is first published. The local authority must issue the confirmation notices within six weeks of the date of the order being confirmed. The local authority may then exercise the CPO either by serving a notice to treat or by executing a general vesting declaration.
14. The government has also published guidance for people who may be affected by a compulsory purchase. The aim of the booklets is to explain, in simple terms, how the compulsory purchase system works. Booklet 1 notes it may be possible to secure some form of undertaking from the authority limiting the way in which they will exercise their powers, probably in exchange for the withdrawal of the objection.

Council’s empty property strategy

15. The Council’s empty property strategy aims to encourage and bring about the re-use and occupation of all sustainable empty homes in the private sector.
16. The Council aims to work with owners of empty homes to educate them as to the problems empty homes can caused such as:
• Blight and urban degeneration.
• Acting as a focus for anti-social behaviour including vandalism and arson.
• Devaluing neighbouring properties.
• Increasing pressure on current housing stock, creating pressure to build on Greenfield sites, and contributing to higher prices for housing in areas of demand.
17. The Council aims, through encouragement, to engage with owners to look at the options for bringing their home back into use. If encouragement and pressure fails, the Council can, as a last resort, use enforcement measures such as compulsory purchase to achieve its objectives of bringing sustainable accommodation, in areas of housing need, back into residential use.

Council’s complaint policy

18. The Council has a three stage complaints procedure:
• Stage 1 - Settle the complaint immediately where the Council can resolve the issue on the spot. If this is not possible, the Council will go straight to stage 2.
• Stage 2 - Investigate the complaint. The directorate that provided the service will investigate the complaint and respond within 15 working days.
• Stage 3 - If the complainant is unhappy, the Council will appoint an independent officer to review the complaint. The Council will respond within 20 working days.

What happened

19. Mr X owns a property, Property A.
20. Property A came to the attention of the Council in November 2011. The Council visited the property in November 2011 and noted the properly was unoccupied. The Council contacted Mr X about the property, and he advised he would complete work on the property within six months.
21. Between 2012 and 2018, the Council continued to check the progress of works at Property A. The Council noted it visited Property A on several occasions but there were no signs of any works in progress or completed, and that the property remained unoccupied. There is evidence the Council liaised with Mr X and his representatives during this period.
22. At the end of June 2018, the Council made a CPO. The CPO listed several properties, including Property A. The Council recorded its view that there was a compelling case in the public interest to acquire the properties to aid in meeting housing needs and in improving the visual appearance of the properties.
23. The Council also considered the Human Rights Act 1998, in particular Article 8 and Article 1 of the First Protocol. The Council considered interference with these rights were justified because:
• The interference was in line with the law as there was a legal basis for making the CPO under Section 17 of the Housing Act 1985.
• The CPO was necessary and proportionate to bring empty homes back into use and to improve the condition of the properties to provide housing in an area of high demand.
• On balance, it was in the interest of the community to make the CPO over and above the interest of the individuals affected.
24. In February 2019, the Council and Mr X signed a mutual undertaking which listed Mr X would complete the following:
• By 31 July 2019, repair, renovate, and/or improve Property A to a good and habitable standard to the reasonable satisfaction of the Council.
• By 31 July 2019, Mr X will permanently occupy Property A or have placed the property for sale or rent.
• Withdraw his objection against the Council’s CPO. Mr X will send confirmation of his withdrawal to the Secretary of State for Housing, Communities and Local Government.
25. Mr X sent the Council a letter with the signed agreement. In the letter, Mr X summarised a conversation he had with the Council about the meaning of “improved to a good habitable standard, to the reasonable satisfaction of the Council”. Mr X noted the Council told him this meant the property would have operational bathing and sanitation facilities. Mr X also noted they discussed that if the Council felt the improvements were not to their reasonable standard, then there would be a discussion between him and the Council.
26. In April 2019, the CPO was confirmed by the confirming authority. The Council gave notice of the confirmation in June 2019. Mr X said this was evidence the Council had predetermined his case and that it intended to compulsorily purchase his property regardless of whether he complied with the agreed February 2019 undertaking.
27. In August 2019, the Council completed an external inspection of Property A. The Council noted the front and rear gardens were overgrown. The officer also noted they could see from the rear kitchen window that no work had been completed as there were no kitchen units or utilities connected. There was no record of any observation of the other rooms in the property.
28. The Council wrote to Mr X and told him it would execute a general vesting declaration to transfer ownership of Property A to the Council as he had not complied with the undertaking.
29. Mr X contacted the Council as he disagreed with the Council’s decision. Mr X also raised concerns as the Council had not completed an internal inspection before deciding he had not complied with the undertaking. Mr X told the Council he was living in the property and it was habitable. The Council told Mr X it was satisfied he had breached the undertaking based on the external inspection.
30. On 5 September 2019, the Council executed a general vesting declaration which listed Property A. On 6 September, the Council gave notice to Mr X. The notice highlighted the property would vest in the Council on 9 December 2019.
31. Mr raised a complaint at the beginning of October 2019. The Council agreed to respond to Mr X’s complaint under stage two of its complaint procedure. The Council completed its investigation report at the end of November 2019. Mr X said he did not receive the report until December 2019.
32. The investigation report highlighted concerns the Council did not try to complete an internal inspection. The report also noted the terms of the undertaking was ambiguous and agreed there was a suggestion there would be a discussion about whether the works met the standards of the Council. The report recommended the Council put on hold any enforcement action and to have a further discussion with Mr X.
33. There Council made an amendment to the general vesting declaration on 3 December 2019 which removed Property A from the declaration. This meant ownership of Property A would not transfer to the Council on 9 December 2019. The Council also accepted Property A was both habitable and that Mr X lived in it as his main home.
34. Between December 2019 and April 2020, Mr X chased the Council for a response to his complaint. The Council told Mr X it had not dealt with his complaint under the corporate complaints procedure due to the legal nature of the dispute.
35. The investigating officer arranged for Mr X’s complaint to be reviewed in April 2020. The Council sent Mr X its review response in August 2020.

Analysis

Compulsory Purchase Order

36. The Council has provided evidence of the legislation used, and process it followed, to make the CPO in June 2018. The evidence shows the Council properly considered all relevant information, including whether the purpose of the CPO justified interfering with Mr X’s human rights. The Council has evidenced clear consideration of these points. Therefore, I am satisfied it had due regard to Mr X’s human rights before it made the CPO.
37. The Council’s decision to make a CPO is also in line with its Empty Homes Strategy. The evidence shows there was a thorough and proper decision-making process before the Council made the CPO in June 2018. Therefore, I cannot find fault with the Council’s decision to make a CPO in relation to Property A.
38. I also do not consider there was any fault in the Council including in the undertaking for Mr X to withdraw his objection. It is clear guidance considers this to be a reasonable approach for councils to take.
39. The Council’s CPO was not confirmed until April 2019, almost a year after the Council first made the order. The Council gave notice of the confirmation in June 2019. Therefore, while I appreciate Mr X thought this meant the Council had predetermined his case, the Council’s actions were appropriate. This is because it must issue the confirmation notices within six weeks of the date of the order being confirmed. If the Council had not done so, it would not have been able to exercise the CPO.
40. The evidence shows the Council only completed an external inspection of Property A in August 2019, before deciding to implement the CPO. The officer’s notes of the visit detail the front and rear gardens of Property A being overgrown, and the kitchen had not been renovated.
41. The undertaking signed by Mr X and the Council in February 2019 noted Mr X would repair, renovate, and/or improve Property A to a good and habitable standard to the reasonable satisfaction of the Council. There is no further clarification in the undertaking of what "good and habitable standard” means.
42. There is evidence Mr X sought clarification with the Council on the meaning of “good and habitable standard”. Mr X said the Council told him this meant the property would have operational bathing and sanitation facilities. There is no evidence the Council told Mr X his understanding was wrong or not in line with their view.
43. Therefore, on balance, it was reasonable for Mr X to take the view he had to repair, renovate, and/or improve Property A to have operational bathing and sanitation facilities to meet the terms of the undertaking.
44. Further, the undertaking stated Mr X would either live in Property A as his permanent home or put it up for sale or rent. Mr X said he moved into Property A as his permanent home at the end of July 2019. The Council appears to have decided Mr X was not living in the property based on the overgrown garden and the fact the kitchen was unfinished. However, there could have been evidence of Mr X living in Property A that the Council could not see because there was no view of the other rooms from the kitchen window.
45. The Council should have completed an internal inspection of Property A to gather all available evidence as it is likely, on balance, the condition of the other rooms would have influenced the Council’s decision. This is evidenced by the fact the Council agreed in December 2019 that Property A was habitable despite no evidence Mr X completed any further works to the property between August and December 2019.
46. Finally, it is noted both CPO guidance and the Council’s empty home strategy state a CPO should be a last resort. This adds weight to our view the Council should have inspected all of Property A before deciding to implement the CPO.
47. It is recognised the evidence shows the Council had worked with Mr X for several years to try and bring Property A back to a habitable standard. It is also accepted the evidence shows Mr X had failed to complete the works he said he would complete between 2011 and 2018.
48. However, this should not be the Council’s main consideration when deciding whether to implement a CPO. This is because the aim of the Council’s empty homes strategy is to work with homeowners to bring empty homes back into use. Therefore, it would be reasonable to expect the Council to continue to work to this principle until such time it was clear Mr X was unwilling to engage with the Council.
49. In response to our draft decision, the Council said by the time it made the decision to implement the CPO, the Council had substantial evidence of Mr X’s unwillingness to engage with the Council as he failed to comply with his own agreements for years.
50. However, the lack of compliance in the past was not relevant as the Council had agreed to the new undertaking in February 2019. Any historic reluctance by Mr X to complete works should have no bearing on the Council’s consideration as to whether he was complying with the February 2019 undertaking.
51. Therefore, I consider the Council’s decision making to be flawed as it did not consider all relevant information before making its decision. This is fault.
52. I consider the fault caused Mr X distress and anxiety as he feared he would lose his property despite complying with the February undertaking. Further, I consider the fault meant Mr X had to engage with a solicitor unnecessarily between August and December 2019 to remove his property from the Council’s general vesting declaration. This is because if not for the fault, it is likely on balance, the Council would not have included Property A in the general vesting declaration as it would have been satisfied Mr X had complied with the undertaking.
53. I note the Council has already removed Property A from its September 2019 general vesting declaration. This means Property A did not transfer to the Council in December 2019. This action was appropriate to put right some of the injustice caused to Mr X by the Council’s flawed decision making.

Complaint handling

54. There is some evidence to suggest the Council did not deal with Mr X’s complaint under its corporate complaints procedure. However, it is clear the Council did not communicate this clearly to Mr X. Therefore, it is understandable why there was confusion as to how the Council should respond to the complaint.
55. It is clear the Council did investigate Mr X’s complaint. The final report highlighted the concerns of the investigating officer and their recommendations. However, there is no evidence the Council responded formally to the report and to the recommendations. Therefore, it is understandable why Mr X felt the Council had not responded to his complaint.
56. Further, the Council did not provide Mr X with any details of the next steps or how to escalate his complaint. It is evident the investigating officer considered the complaint had been resolved satisfactorily. However, there will be situations where the complainant is unhappy with the outcome of the complaint. Therefore, it is good practice to provide details of the next stage of the complaints process or to signpost complainants to the Ombudsman. This is fault.
57. The Council escalated Mr X’s complaint for a review in April 2020. It took the Council around four months to provide its review response. The Council’s complaints procedure sets out the Council will aim to respond within 20 working days.
58. In response to our draft decision, the Council said its complaint review took place during the height of the Covid-19 pandemic and national lockdown. It is accepted the national lockdown would have had an impact on the Council’s ability to provide a timely service.
59. However, there was still delay with the Council’s complaint handling. This is a service failure and is fault. I consider the fault identified caused Mr X time and trouble as he had to continuously chase the Council for a response to his complaint.

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Agreed action

60. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following:
• Apologise to Mr X for the injustice caused by the faults identified.
• Reimburse Mr X’s legal fees incurred between August and December 2019. The Council can ask Mr X to provide a detailed invoice which sets out the work undertaken, and the fees charged by his solicitor during this period.
• Pay Mr X £400 in recognition of the distress, anxiety, and time and trouble caused by the faults identified.
61. The Council should complete the above within four weeks of the final decision.

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Final decision

62. I find fault with the way the Council made its decision to implement the CPO. I also find fault with the Council’s complaint handling. The Council has accepted my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman