The Ombudsman's final decision
Summary: Mr D complains that delay by the Council meant his late father missed out on the chance of the Right to Buy his property before he passed away. Our decision is we should discontinue our investigation, as we cannot achieve the remedy Mr D wants – that is the Right to Buy his father’s council home.
The complaint
The complainant, whom I shall refer to as Mr D, complains the Council delayed processing his late father’s (Mr E) Right to Buy application for his Council home. The delay meant the sale was not completed by the time of Mr E’s death, meaning the property did not become part of his estate.
Mr D says he seeks the right to buy the property, or the Council to reach some agreement with the family about this.
The Ombudsman’s role and powers
The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916) We investigate 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 continue an investigation if we decide: there is not enough evidence of fault to justify investigating, or any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement, or we could not add to any previous investigation by the organisation, or further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants, or there is another body better placed to consider this complaint, or it would be reasonable for the person to ask for a council review or appeal; or there is no worthwhile outcome achievable by our investigation.
(Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I considered this complaint by: looking at Mr D’s complaint to the Council and its response; looking at some information the Council sent us; speaking to Mr D.
What I found
Legal and administrative background - the Right to Buy The Right to Buy refers to rights granted under the Housing Act 1985 (as amended) to tenants of social landlords (including councils) to buy their home at a discount, provided they meet the criteria.
There is a strict procedure for applications. It starts with completing an application form and then time limits run for each part of the process.
Housing usually reserved for people over 60, or disabled residents, is exempt from the Right to Buy, subject to strict criteria.
An applicant whose application to buy their home is refused can appeal to the First Tier Tribunal (Property Chamber) also referred to as the Residential Properties Tribunal. This counts as an alternative remedy for our purposes (see paragraph 3).
There is a separate right of appeal to The District Valuer (part of His Majesty’s Revenues and Customs) about the price the Council offers to sell the property.
What happened Mr E was an elderly man who had lived in his Council home for decades. Mr D says he grew up in the property.
In September 2020 the Council received an application, made on behalf of Mr E, to buy his home under the Right to Buy scheme. The Council responded in December, refusing the application on the basis the property was suitable for the elderly (see paragraph 8). This response was delayed, when compared to the time limits set out in the legislation.
On the same day as the Council’s decision, Mr E appealed that decision. In June 2021, the Council changed its decision and allowed Mr E to proceed with the sale.
In November 2021 the Council sent Mr E a notice the legislation required it to do, making its offer, which included the price. This notice was delayed, when compared to the legal time-limits, by around a month.
Mr E asked the District Valuer to review the valuation in February 2022.
In March the Council’s Right to Buy Team, in conjunction with its Legal Team, referred Mr E’s application to its Audit & Investigations Team. Its Safeguarding Team also became involved. At the end of March, the Council served a notice seeking possession of the property, on the grounds that Mr E had not been living there as his main home.
In the following months, Mr E passed away. The Council withdrew its acceptance of Mr E’s Right to Buy application, on the basis of Mr E’s passing. Mr D sought to challenge that decision in court, but was unsuccessful.
The possession proceedings continued. As part of that process, Council officers produced a witness statement. This asserted that Mr E had not been living at his tenancy since the Spring of 2019. It said he had not returned there after a stay in hospital. And the council in the area where Mr D lived advised it had been providing Mr E a package of care for his care and support needs there, since December 2020.
Mr D says that at the time of the application, Mr E was living in his home, not with him. So, but for the Council’s delay, he would have completed the process.
Mr D complained. The Council’s complaint responses acknowledged some delay but said it did not impact on the process. It also suggested Mr E did not have the Right to Buy the property, as he had not been living at the property as his principal home.
Mr D and his family continue to challenge the possession proceedings.
Analysis There was some delay in the Council progressing with the Right to Buy application. But the process was also held up by waiting for the Tribunal and the District Valuer to consider Mr E’s challenges. The District Valuer had not made their decision by the time Mr E passed away. So I do not agree with Mr D’s analysis that it was the Council’s fault the sale did not go through before Mr E passed away.
For the reasons set out in paragraph 3, I cannot look at the Council’s original decision to refuse the application. Mr E correctly used his right of appeal against the decision, which takes that matter outside the Ombudsman’s jurisdiction.
There is also a dispute between Mr D and the Council about whether Mr E had a Right to Buy the property. A linked possession proceedings is currently being considered by the courts. Adjudication on those issues would involve deciding on contested questions of fact and law which need the more rigorous and structured procedures of civil litigation for their proper determination. So the Ombudsman cannot consider the disputed question of whether Mr E had the right to buy the property.
For these reasons, my view is the Ombudsman cannot achieve the remedy Mr D seeks – to be allowed the Right to Buy his late father’s property, or for the Council to make an offer to him. As the Ombudsman cannot make the recommendation Mr D seeks, my decision is I should end my investigation.
Final decision
I have discontinued my investigation.
Investigator's decision on behalf of the Ombudsman