The Ombudsman's final decision
Summary: Mr F complained the Council caused delays in the Right to Buy process of his home as it incorrectly sold part of his land to a neighbour and has failed to resolve this. We found the Housing Act 1985 sets out specific steps Mr F should take in such circumstances, which can provide the remedy and action he seeks through delay notices and an application to the County Court. We have therefore discontinued our investigation.
The complaint
The complainant, whom I shall refer to as Mr F, complained the Council wrongly sold his neighbour a part of the land he rents from the Council. This has meant Mr F cannot buy his property under the right to buy (RTB) scheme. He also said the Council has not done enough to resolve the matter.
Mr F said, as a result, he has experienced distress and uncertainty. He also says he had to continue to pay rent and had other costs.
The Ombudsman’s role and powers
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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended) 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)
How I considered this complaint
As part of my investigation, I have: considered Mr F’s complaint and the Council’s responses; discussed the complaint with Mr F and considered the information he provided; considered the information the Council provided in response to our enquiries; had regard to the law and guidance relevant to the complaint.
Mr F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Right to buy The right to buy (RTB) scheme refer to rights granted by the Housing Act 1985 to tenants of social landlords such as councils to buy their home at a discount providing they meet the criteria.
The is a strict procedure for applications. When a council receives an application form it must: issue a decision within four weeks on whether the applicant is eligible under the scheme to purchase their property; if the person is eligible, issue an offer for the property within eight weeks for freehold properties and 12 weeks for a leasehold property. The offer should set out the purchase price, the years of the tenancy and the discount applied to it.
inform the applicant of the service charges payable for the first five years.
The sale of a property then follows standard conveyancing for property sales. The Council should send the plans of the property to the applicant’s solicitor, who can then check the accuracy of the title, including property boundaries.
In the event there are errors in the property plans, the Council should rectify any mistakes without unnecessary delay.
Delay If a council causes delays of a sale, the applicant can complete and send a ‘notice of delay’ form. A council then must take action within one month or send a counter notice. This has the effect of cancelling the initial delay notice served by the tenant.
If a landlord does not serve a counter notice or the deadline for the initial notice has expired, a tenant can service an ‘operative notice of delay’. This can reduce the rent paid while waiting to hear from the landlord.
A tenant can bring a claim to the County Court to consider the right to buy process, except for disputes about valuations. The Court can: order an injunction which can force the Council to do something or refrain from doing something; and issue a declaration as to the tenant’s entitlement.
Caselaw has established the Court cannot consider other damages as the Housing Act 1985 already provides a remedy for delay [Francis v Southwark LBC [2011] EWCA Civ 1418].
What happened Mr F is a tenant of the Council. He applied to the Council in Spring 2021 to buy his property under the right to buy (RTB) scheme.
In Summer 2021 the Council provided Mr F with the details about the purchase price for his property, which he agreed to. Mr F’s solicitor sent the Council the necessary paperwork to progress the process shortly after.
Over the next five months Mr F and his solicitor chased the Council on several occasions for progress on the RTB process.
In response the Council said the legal timescales had been met, but there was no timeframe for it to complete the sale. It explained it had passed the relevant paperwork to its legal services.
In late 2021 the Council sent Mr F a notice for him to complete the purchase within six weeks. Mr F's solicitor contested the notice as he and Mr F had not received the contract to progress the process from the Council.
A month later the Council told Mr F’s solicitor its legal services were busy, and Mr F could ask for an extension.
The Council then told Mr F’s solicitor there was an issue with the title of his property. This was because several years ago part of Mr F’s property had been sold to his neighbour in error. It therefore needed the title to be rectified, which could take a long time to resolve.
In Spring 2022 Mr F and his solicitor chased the Council for progress and questioned: what would happen if the RTB process was not completed within 10 months, including the impact on the purchase price; what the Council was doing to progress rectification of the title; and why it had not identified the issue with the title sooner and why it had sent Mr F a notice to complete.
In response the Council confirmed the purchase price will remain the same and his application would be extended. It explained its policy was to send notices directly to applicants, but it was working with his neighbour to rectify the plans. It confirmed his neighbour had agreed to the amendments of the plans for their property which its legal services would action.
Mr F and his solicitor has continued to chase the Council for progress. The Council explained it was waiting for his neighbour’s solicitors to agree to a Deed of Variation so the Land Registry could amend the title.
In October 2022 Mr F complained to the Council about its handling of his RTB process and the delays it was causing. He asked the Council to provide his neighbour’s solicitors details.
In response the Council told Mr F it needed the Deed of Variation to be completed by his neighbour’s solicitors before it could progress. It had been chasing this, but until they engage it could not proceed. It acknowledged Mr F’s frustrations, but explained the delay in the purchase was not due to the Council.
Mr F’s and his solicitor continued to chase the Council since. However, in January 2024 the matter is still unresolved. Mr F asked the Ombudsman to consider his complaint.
In response to our enquiries, the Council shared the steps it had taken to progress the rectification of the title to Mr F’s property. This shows it: discussed the issue with his neighbour in early 2022 who agreed to register the variation of plans with the Land Registry; agreed to cover the legal costs of the rectification for Mr F’s neighbour; shared the existing plans and proposed plans with Mr F’s neighbour’s solicitors for consideration, and chased the solicitors on several occasions for responses; added Mr F’s neighbour’s mortgage provider to the Deed of Variation; asked Mr F’s neighbour to find alternative solicitors, which was at the request of the mortgage provider due to specific requirements for the solicitor’s firm’s registration; and chased Mr F’s neighbour in Autumn 2023 and Spring 2024 but received no response.
Mr F says he has since spoken with his neighbour, who was struggling to find a solicitor who could help. I understand he has informed his neighbour how to find a solicitor through the Law Society, which meets the mortgage providers requirements.
Analysis and findings Mr F complains about the Council’s handling of his RTB application since 2021. Part of this complaint is therefore late as it relates to matters which occurred more than 12 months ago.
The evidence shows Mr F has continued to chase and complain to the Council about its delays in completing the RTB process so he can purchase his property. I have found it is therefore not appropriate to consider his complaint as late.
Mr F and the Council agrees he is entitled to buy his property through the RTB scheme. It is also agreed the title of Mr F’s property is wrong as the Council incorrectly sold part of his land to his neighbour several years ago, which both the Council and Mr F became aware of after he applied to purchase his property.
The issue which remains is the delay which is occurring due to the Council’s inability to complete the RTB process until the title of Mr F’s property has been corrected. Mr F’s complaint is therefore about the Council’s delays in the RTB process.
I found it is not appropriate for the Ombudsman to consider his case further. This is because Mr F has rights through the Housing Act 1985 to: serve, or continue to serve, notices of delay on the Council; serve operative delay notices if the Council fails to act or serves a counter notice, which can provide the remedy for the delays he has experienced through a reduction in the purchase price based on his rent payments; and apply to the County Court for a declaration of entitlement and an injunction. This can confirm his legal entitlement to purchase his property and land which was incorrectly sold off to his neighbour. The Court can also consider an injunction to force the Council to act. This is not a remedy the Ombudsman could achieve.
While I understand Mr F may not have been aware of his rights to serve delay notices and to apply to the County Court, this is a matter I would expect his solicitors to have advised him about.
Final decision
I have discontinued my investigation. This is because Mr F has specific rights through the Housing Act 1985 to seek action and a remedy for the delay.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman