Summary: We will not investigate this complaint about the Council’s decision not to change a section 106 planning agreement which restricts Ms X’s ability to sell her affordable home. This is because there is no evidence to suggest fault by the Council sufficient to warrant an investigation.

The complaint

1. Ms X complains the Council has refused to amend a clause in the section 106 planning agreement about restrictions on selling on her affordable home. She says mortgage lenders will not accept the restriction for potential borrowers who want to buy her home and the Council should amend the relevant part of the section 106 agreement to satisfy mortgage lenders’ requirements.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’ which we call ‘fault’. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

4. I considered information provided by the complainant and the Council, including its response to the complaint.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Ms X bought an affordable home which has a local occupancy clause attached to it which restricts who can buy the property from Ms X. When potential buyers of Ms X’s property found their mortgage lender would not lend to them because of the local occupancy clause, Ms X asked to Council to amend the section 106 agreement planning obligations.
7. The Council looked into the matter but explained to Ms X that the section 106 agreement followed Council policy and that it could not act to make changes which would be inconsistent with those policies.
8. It is not our role to act as a point of appeal against decisions or policies made by councils with which complainants disagree. We cannot question a council’s decision or policy if it has followed the right steps and considered the relevant evidence and information.
9. The Council has its policy relating to local occupancy of affordable homes and it has followed this policy. It has told her it has no evidence to suggest all mortgage lenders have an issue with the local occupancy clause/affordable housing policy and that the section 106 agreement does have a cascade provision if a buyer cannot be found who complies with the local connection criteria. While the Council’s decision is disappointing for Ms X, there is no evidence to suggest fault affected it.

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Final decision

10. We will not investigate Ms X’s complaint because there is no evidence to suggest fault by the Council sufficient to warrant an investigation.

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Investigator's decision on behalf of the Ombudsman