Summary: Mr X complained the Council had failed to deliver improvements to its affordable housing monitoring procedures. We found no fault because the Council has effective procedures for carrying out its functions.

The complaint

1. Mr X complained that, despite agreeing to do so after a complaint he had made to the Ombudsman in 2016, the Council failed to produce effective procedures to check delivery of affordable housing obligations (AHOs) required under section 106 agreements.
2. Mr X said the Council has:
• no effective means to monitor AHO delivery;
• not always published annual AHO audits since agreeing to do so;
• not commissioned an online reporting tool which was meant to provide the Council and the public with up-to-date information about AHO delivery.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with an organisation’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)
5. We can decide whether to start or discontinue an investigation into a complaint or any part of a complaint that is within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

Back to top

How I considered this complaint

6. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and made enquiries. I interviewed officers with responsibility for policy and planning enforcement. I used the Council’s online webpage to view ‘live’ data on affordable housing provision.
7. I gave Mr X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.

Back to top

What I found

Planning law and guidance

8. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
9. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
10. Councils may approve applications, subject to a planning condition requiring the applicant to enter into a separate planning agreement. Council powers and appeal rights relating to these agreements are found in the Town and Country Planning Act 1990. The agreements are usually referred to as ‘section 106’ agreements. The agreements are in the form of a deed, which is a type of contract that is legally binding on the parties that sign it, and the successors in title to the land it applies to.
11. A party to section 106 agreement can apply to modify or discharge an obligation within it. An application to modify or discharge a section 106 agreement may only be made five years after the agreement came into force.
12. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.

Background

13. Mr X is a member of a campaign group that have an interest in improving the supply of social housing and sustainable development.
14. In 2016, we considered and decided Mr X’s complaint about the Council’s failure to implement a structured procedure for ensuring compliance with affordable housing obligations (AHOs) set out in planning agreements. We ended our investigation because the Council accepted it did not have adequate procedures to check and ensure compliance with legal obligations. The Council said it had already begun auditing planning decisions and section 106 agreements, and that it would provide and publish an annual audit to help it make enforcement decisions. We did not decide to require the Council to provide us with a schedule for improvements or evidence that it had developed or implemented them.
15. Mr X continued to monitor the Council’s progress in delivering on the assurances it had made, but became frustrated because:
• in the six years since we had published our last decision, the Council had only published two annual audit reports;
• the Council had commissioned a software company to make it a bespoke online tool for recording and publishing ‘live’ data on AHO provision, but this was not being used.
16. Mr X was concerned that because of the Council’s failure to complete the work it had told us it would, rents would be higher for many tenants and AHO provision was less than it should be.
17. During the course of my investigation, Mr X raised additional concerns about inconsistencies between ‘live’ AHO data and other documents also published on its website. Mr X said this throws doubt on whether the Council’s current processes were effective.

The Council’s response to the complaint

18. I interviewed two officers to ask questions about Mr X’s complaint. The first (Officer 1) was a manager responsible for policy development. The second (Officer 2) was a planning enforcement manager.

AHO reporting software

19. Officer 1 had been responsible for planning policy since 2019. Officer 1 said that the bespoke software tool the Council commissioned had been replaced by well-known proprietary software. This was now used for recording and publishing ‘live’ AHO data. Officer 1 said this new software was better suited to the task and was in use across a number of services in the Council.
20. Officer 1 explained that the choice of software is likely to change again as technology improves and evolves. At the moment, Officer 1 is working with a major developer to build a new tool that could incorporate data from a number of different software platforms and funnel them into useable and linked data that can be published on-line.
21. To collect the AHO data it needed, the Council had to review a large amount of documentary evidence from planning files going back to 2002. The documents included planning decisions, case officer reports, variations and amendments to approvals, condition discharge decisions, section 106 agreements, court decisions and appeal outcomes. Most of the task was carried out by two officers, but the team had been expanded to ten people to complete the project.
22. Officer 1 said that because of the size of the task, there was a gap of several years in issuing annual AHO reports between the first in 2017 (which was based on an incomplete data set) and the next report, which was issued in 2021, when its software system held more data. Officer 1 said that the need for annual reports is reducing, as ‘live’ data is updated soon after it is gathered and officers regularly report to the Council’s Housing Scrutiny committee and other committees. At these committees, officers answer questions about AHO provision using ‘live’ data, and the outcomes of these meetings are recorded in minutes.
23. Officer 1 said that the data could not be truly live, as there was inevitably a gap between finding information and inputting it into the software system, but they were satisfied it was a useful tool that gave planning enforcement officers and others interested in AHO compliance, the information they needed.

Planning enforcement AHO investigations

24. Officer 2 explained that there were a number of different types of AHO compliance cases the Council had to consider for enforcement action. Officer 2 said these included the following:
• There were cases where there had been changes between what was originally expected during the planning and what was finally agreed in section 106 agreements. It was sometimes difficult to know why changes had occurred, but these decisions were made against an evolving policy background. Sometimes funding arrangements for affordable housing changed during the process, and so development could not go ahead as planned. On other occasions, variations were sought because developers argued that projects had become financially unviable. However, planning enforcement officers could only enforce the terms of the agreements that were signed and executed.
• In some cases, the type of AHO tenancy was not what had been required. A Social Rent was the best that could be achieved, and was usually close to council rent levels. An ‘Affordable Rent’ is a proportion of market rent, which in the Council’s area close to the cities of London and Westminster, was inevitably high. Often these rents were between 50 - 80% of the market rent for a property, putting accommodation outside the budgets of many people.
• There were equity schemes, where the tenant could buy a percentage of the freehold or leasehold of the property and so become a part owner.
• In some cases, though planning decisions had been made, or section 106 agreements had been signed, development had not gone ahead or was not complete.
• On one occasion, there had been significant failure to comply with section 106 obligations that had led to a court case. This case was eventually settled, and the court had ordered the transfer of a substantial number of housing units to another registered social landlord.
25. Officer 1 said that enforcement action on the bulk of cases had not been possible until the data collection and sharing work had been completed. The normal process was as follows. Initially, enforcement officers would write to the other parties to the section 106 agreements to ask them to provide updates on compliance. If they did not respond, the Council sent formal notices to require a response. Failure to comply with the notice could amount to an offence and a fine in the magistrate’s court.
26. Officer 1 said that in most cases, they found compliance with AHO obligations. Most breaches related to tenure type issues and had either already been resolved or could easily be resolved. Because tenancies and owners are likely to change with time, the Council needed to carry out regular reviews to capture up‑to-date data.

My findings

27. We are not an appeal body. Our role is to review the process by which decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant. We can sometimes look beyond injustice to individuals, and remedy fault that might affect others.
28. A delay or a failure to deliver a service can be fault, but before deciding whether an event or omission amounts to fault, we need to consider its wider context.
29. In 2016 the Council had told us it would implement a structured procedure for AHO compliance and that it would deliver annual reports. There was a gap of several years between issuing annual reports and it is only in the last year that it substantially completed its database.
30. I do not consider the delay in meeting its objectives as set out during our last investigation is fault or that further investigation is necessary. My reasons for this are as follows:
• I accept that the task of reviewing, processing and uploading information from planning records was always likely to take a long time to complete. I am satisfied that the Council now has effective means to capture and record AHO data for enforcement and other purposes.
• In our last decision, we did not require the Council to complete improvements within an agreed time period or to a schedule. Even if we had done so and Mr X had brought his current concerns to us sooner, we would be obliged to consider explanations for delay before deciding whether there was fault or whether more time should be allowed to complete the tasks. If this had happened, it is likely we would have accepted the Council’s explanation relating to the size of the task.
• The bespoke data software was replaced by proprietary software, which may be changed later at the Council’s discretion. It is not fault for councils to change methods of service delivery.
• Where we find fault in cases like this (where there is no significant personal injustice to the individual complainant) the most likely focus for remedies would be on possible service improvements. However, I am satisfied that the Council now has the tools it needs to capture and publish AHO data.
31. In response to a draft of this decision, Mr X questioned the consistency of data on the Council’s website. I decided not to investigate this part of Mr X’s complaint further, and my reasons are as follows:
• We have discretion on whether to investigate a complaint or part of a complaint. Mr X’s main complaint was that the Council had failed to produce effective AHO compliance procedures. I did not uphold this complaint.
• It is likely there will be discrepancies between ever changing live data and reports and records written and published using this data. I think it is unlikely that further investigation would result in a finding of fault, evidence of a significant injustice or a meaningful outcome. Issues and concerns about data can be put to officers and elected members, and may result in documents amendments or removal at the Council’s discretion.
• These issues are questioned and discussed at Council scrutiny committees, and minutes for meetings can be read and challenged. The merits of decisions and judgments are more a matter for officers and elected members of councils, rather than the Ombudsman.

Back to top

Final decision

32. I completed my investigation as I found no fault.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman