The Ombudsman's final decision
Summary: We will not investigate this complaint about Mrs X’s application to buy her Council home. Mrs X could reasonably have taken court action. It was not the Council’s responsibility to ensure Mrs X served the correct delay notices. Nor was the Council directly responsible for costs and financial loss related to an emergency solicitor’s appointment.
The complaint
Mrs X complains the Council delayed her ‘right to buy’ house purchase and did not tell her at the relevant time that if she wanted the Council to refund rent she had paid during the delay, she must serve an operative notice of delay, not just the initial notice of delay. She states this meant £1505.42 rent was not refunded. Mrs X also complains that later delays by the Council resulted in the final stages of the purchase being rushed so she needed an emergency appointment with a solicitor, which caused financial loss. Mrs X says she also suffered stress and went to time and trouble chasing the matter.
The Ombudsman’s role and powers
The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide any fault has not directly caused injustice to the person who complained, or we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6)) 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, or could have taken, the matter to court. However, we may decide to investigate if we consider it would be, or would have been, unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
Mrs X continued paying rent during a period when the Council delayed the house sale. The Council must refund rent paid during such a delay if the tenant has served an initial delay notice and then an operative delay notice. (Housing Act 1985, sections 153A and 153B) Mrs X served an initial notice but not an operative notice. The Council apologised for the delay but refused to refund the rent. Mrs X knew this before the house sale completed.
The county court can decide any dispute about a right to buy matter. (Housing Act 1985, section 181) So the restriction in paragraph 3 applies. The law expressly provides this route. The court can make a binding order if it sees fit. Court action might have some cost, but in the context of buying a house I do not consider that would automatically have made such action unreasonable. Mrs X could have asked the court for her costs if she succeeded. So I consider it would have been reasonable for Mrs X to have taken court action.
Even if the point above did not apply, the law only obliges the Council to refund rent if the legal process is properly followed. That did not happen because Mrs X did not serve the operative notice of delay. It was Mrs X’s responsibility, as someone seeking to use the right to buy, to ensure she understood the position (by taking her own legal advice as necessary) and to serve all the necessary notices. It was not the Council’s role, as the other party to the transaction, to advise Mrs X fully of her legal rights at each stage, regardless of whether it had offered some advice before or of whether Mrs X asked it. So I do not consider the Council responsible for Mrs X not serving the operative notice.
It would also be inappropriate for us to ask the Council to repay the rent when the legal requirements for doing that were not met. For these reasons, we shall not investigate the complaint or ask the Council to repay the rent.
Mrs X says later delays by the Council meant there were time pressures to complete the sale, which she says led to her solicitors overlooking a requirement of her mortgage lender. She reports she and her husband therefore had to pay extra for an emergency appointment to make a legal declaration and her husband lost earnings when attending this. I acknowledge the circumstances were difficult. It was Mrs X’s solicitors, not the Council, who apparently overlooked the lender’s requirement. The solicitors had their own responsibility to deal properly with the matter, irrespective of any delay by the Council. So we could not reasonably hold the Council directly responsible for any extra cost or lost earnings here.
Final decision
We will not investigate Mrs X’s complaint because Mrs X could reasonably have taken court action. It was not the Council’s responsibility to ensure Mrs X served the correct delay notices. Nor was the Council directly responsible for costs and financial loss related to the emergency solicitor’s appointment.
Investigator's decision on behalf of the Ombudsman