Summary: Mr X complained the Council failed to properly consider its discretion not to recover all or part of the Right to Buy discount causing him distress. The Council does not have a written procedure and has not evidenced how it considered Mr X’s case. This is contrary to government guidance and so is fault. To remedy the injustice the Council agrees to compile a procedure and then consider Mr X’s request under it.

The complaint

1. Mr X complains the Council failed to properly consider its discretion not to recover all or part of the right to buy discount for his home.
2. Mr X says the failure to do this is causing distress as he cannot sell his home and move nearer to his carer.

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The Ombudsman’s role and powers

3. 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)
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)

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What I have and have not investigated

5. Mr X also raised concerns about the boundary at his property. It is my understanding the Council’s continuing involvement with the boundary issue relates to its social housing management role as a registered provider of social housing. I therefore take the view the boundary issue falls outside the Ombudsman’s jurisdiction.

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How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

7. Mr X bought his property under the Right to Buy Scheme in August 2020. This is the right under the Housing Act 1985 for tenants of social landlords to buy their home at a discount provided they meet the stated criteria. The scheme states that if a tenant buys a home and then sells within five years, they must pay back some of the discount received.
8. Mr X needs to sell his home to move nearer to his carer. Mr X previously had a brain tumour and now needs further surgery and radiotherapy. As a result he cannot work and so has limited income. His says that his home is no longer suitable for his needs.
9. Mr X bought his property in August 2020 and so contacted the Council asking it to use its discretion to waive the requirement for him to repay the discount. Mr X says he has not received a proper response or explanation about why it will not waive the discount. Mr X says he has asked for a copy of the Council’s policy on how it exercises its discretion but it has never provided it.
10. The Council’s complaint response dated 10 May 2023, says that Mr X would need to provide a sale price or valuation for it to work out what he would need to repay. It says Mr X has not made it aware the property has been put up for sale. It does not provide any information about how it would consider using its discretion to reduce or cancel the discount repayment or what evidence Mr X would need to provide.
11. Mr X was dissatisfied with the response and so escalated his complaint to stage two of the Council’s procedure. Mr X believed the Council was confused about what he was asking and so clearly stated that he was not asking to reclaim a previous discount but to waive the final payment under section 155 of the Housing Act 1985. Mr X said that he was making his request under the severe health condition provision. Mr X also provided information about the anti-social behaviour he had experienced at the property.
12. The Council replied on 2 June 2023. It said Mr X had not provided any medical evidence to suggest his property is not suitable because of medical conditions and that he requires alternative accommodation such as a bungalow or adapted property. It also said the antisocial behaviour he referred to was historical and that it had received no previous complaint from Mr X about this.
13. It said the discretionary powers under section 155 of the Housing Act 1985 are used under exceptional circumstances and in line with the guidance and Mr X did not meet these exceptional circumstances.

Analysis

14. Mr X wants to sell his property so he can move nearer to his carer because of his health problems. He will have to repay some of the discount he received when buying his property under Right to Buy legislation if he does this before August 2025. Mr X says he cannot afford to do this and so asked the Council to use its discretion under section 155 of the Housing Act 1985.
15. I made enquiries of the Council and asked it to provide a copy of its policy on how it applies the discretion on Right to Buy discount repayments. It has not provided a bespoke policy but instead responded with a copy of the government guidance and the letters sent to Mr X.
16. The government guidance says that former landlords have discretion not to demand that former social tenants repay part or all of the discount they received. It says it is for each landlord to decide whether the circumstances in any particular case would justify the exercise of discretion. The guidance then says “the Government considers that this is most likely to be justified in circumstances where repayment would lead to demonstratable personal hardship. But it may also be justified in other circumstances”.
17. The guidance then gives examples of circumstances where discretion might be justified. It says that in each case it will normally be necessary to establish both the facts justifying a move, and that such a move could not take place unless part or all of the repayable discount was waived.
18. The guidance says “it is envisaged that this power will only be used in exceptional circumstances, and that landlords will have procedures in place to consider and decide requests that discretion should be exercised. The consideration process should be open, fair and transparent”.
19. The Council has not provided any evidence to show it has a procedure in place to consider such requests. There should be a proper procedure which invites applicants to put forward any reasoning about the need for moving and evidence that repaying the discount would cause financial hardship. There is no evidence to show the Council invited Mr X to do so in this case. The only consideration appears to have been in the complaint procedure, which should not be used for that purpose.
20. The guidance says the consideration process should be open, fair and transparent. It is not possible to ensure this is the case without a written procedure and records detailing the decision making. The absence of this is fault. As a result, Mr X does not know whether the Council gave proper consideration to his request and whether his circumstances meet the threshold required to waive some or all of the discount repayment.

Agreed action

21. To remedy the injustice caused to Mr X as a result of the fault identified above, the Council will, within 12 weeks of my final decision, take the following action:
• Apologise to Mr X; and
• Agree a procedure for considering discretion for requests to waive the Right to Buy discount repayment and then consider Mr X’s request under it.
22. The Council should provide us with evidence it has complied with the above actions.

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Final decision

23. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman